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Pseudonyms, also known as pen names, are common for writers who wish to keep their real identity a secret from their readers. A few literary hoaxes in Australia have stemmed from the fact that writers published books under identities that were not their own. These hoaxes have resulted in writers having their publishing contracts discharged or becoming liable to pay monetary damages to their publishers. As a result, it is crucial that you, as an author, know when it is acceptable to use a pseudonym for your work. This article will outline the legal considerations you should be aware of when wishing to use a pseudonym.
Reasons for Using a Pseudonym
There are some reasons why writers may choose to use a pseudonym. For writers who are well-known in a certain genre, pseudonyms can be a good way to enter into a new genre of books without the expectations and existing judgment that their name carries. Some female writers may wish to publish under a male name to counter any gendered expectations about the subject of their book. Certain writers may not wish to have their real identity exposed to the public for privacy or security reasons. Other writers may simply wish to differentiate themselves between two different styles of writing. Examples of famous pseudonyms include George Eliot, Dr Seuss, Lewis Carroll and Mark Twain.
Legal Considerations
There are three main legal issues you should consider when using a pseudonym. In brief, these are:
- awareness of the pseudonym;
- copyright;
- trade marks; and
- ‘passing off’.
We discuss each of these below.
Awareness of the Pseudonym
It is legal to publish your work under a pseudonym if you are a writer. The key legal concern is ensuring that your publishing contract clearly acknowledges your pseudonym. Ultimately, ensure your publisher is aware of your real identity and that you wish to publish under a different name for whatever reason. While you should sign your publishing contract under your real name, include a confidentiality clause to confirm that your publisher will not disclose your real name to the public without your consent.
If you deliberately mislead your publisher about your real identity and only disclose your pseudonym or an alternate identity, you may unlawfully breach your contract. To avoid the consequences of this, which include legal action and the contract being discharged, be sure to clearly disclose your real name in your contract.
Copyright
The publishing contract should reflect what your pseudonym is and its future representation. Importantly, it should set out how the copyright notice, which acknowledges your ownership of your work, will be covered. You should ensure that the publishing contract states that both your real name and your pseudonym can identify you. This protects both your copyright and moral rights.
Copyright protection is not affected if you publish under a different name, and is also automatic in Australia. If you choose never to reveal your real identity or other people cannot ascertain it, the copyright will only last for 70 years. If you disclose your real name, the copyright will last your lifespan in addition to 70 years.
Trade Marks
Trade marks are distinctive signs or symbols that identify and distinguish your goods or services from those of others. For writers, a trade mark can protect your pseudonym as a brand, ensuring that others cannot use it for similar writing or promotional purposes.
If your pseudonym serves as a brand for your work, you may want to consider registering a trade mark to protect it. Registering your pseudonym as a trade mark can provide legal protection and exclusive rights to use it in connection with your writing. This protection can also extend to related products such as merchandise. The key benefits of trade mark registration are:
- Exclusive rights: You gain the exclusive right to use the pseudonym in connection with specified goods or services.
- Legal protection: You can legally enforce your rights against others who attempt to use a similar pseudonym in the same context.
- Brand recognition: A registered trade mark can enhance your brand’s recognition and value.
This guide explains the essentials of trade marks and the steps required to register a trade mark.
Passing Off
Passing off, which occurs when a business or individual misrepresents another’s goods or services as their own, may also be relevant in two ways. Firstly, if you have a pseudonym that has gained a positive reputation, it is yours to protect, and you can prevent others from using it. While copyright does not extend to protecting names, taking action against others for passing off gives you the right to stop others from using your name non-consensually. Otherwise, you may also consider trademarking the name to give it further legal protection.
The other way passing off may be relevant is to ensure that you do not accidentally use somebody else’s pseudonym, particularly if it is well-known. A court might construe this as passing off on your part. Always check to see whether another person has registered the name as a trade mark.
Continue reading this article below the formKey Takeaways
Using a pseudonym is an effective way for you as a writer to conceal your identity when your work is published. You should make full disclosure to your publishers before taking on a pseudonym and ensure you sign your publishing contract with your real identity. In choosing a pseudonym, research to ensure that the name does not already have a reputation or has been trademarked by someone else.
If you would like assistance regarding pseudonyms as intellectual property or have any further questions, contact our experienced intellectual property lawyers as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
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