Pseudonyms are common for writers who wish to keep their real identity a secret from their readers. George Eliot, Dr Seuss, Lewis Carroll, Robert Galbraith – these are a few more high-profile pseudonyms used in the past by famous authors.
A few literary hoaxes in Australia’s publishing past – e.g. Norma Khouri – have all 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 a hefty amount in monetary damages to their publishers.
So what’s the difference? When is it okay to use a different identity and when is it not? We examine the legal considerations that writers should be aware of below.
Why a Pseudonym?
There are some reasons why writers may choose to use a pseudonym. For writers who are well-known and popular in a certain genre, pseudonyms can be a good way to enter into a new genre of books without the expectations and pre-judgment that their name carries. Some women writers may wish to publish under a male name to counter any gender expectations about the subject of their book. Certain writers may not wish to have their real identity exposed to the public, either for privacy or security reasons. Other writers may simply wish to differentiate themselves between two different styles of writing.
There are three main legal issues you should consider when using a pseudonym.
- Awareness of the pseudonym;
- IP issues; and
- ‘Passing off’.
Each of these is discussed below.
1) Make Sure Your Publisher Knows
It is perfectly legal to publish your work under a pseudonym if you are a writer. The key legal issue is to ensure that this is acknowledged clearly in your publishing contract – that is, your publisher is aware of your real identity and that you wish to publish under a different name for whatever reason. Your publishing contract should be signed under your real name, and there should be confidentiality clauses in place to ensure that this real name will not be disclosed to the public unless you and your publisher have consented.
Where writers can get into trouble is if they deliberately mislead publishers as to their real identity and only disclose their pseudonym or alternate identity. This will be in breach of the contract’s warranties and may open writers up to legal action for breach of contract, as well as have the contracts discharged.
The publishing contract should reflect what and how your pseudonym will be represented. More importantly, it should set out how the copyright notice will be covered. For writers, you should ensure that the publishing contract states that you can be identified by both your real name and by your pseudonym to ensure that your copyright and moral rights are protected.
Copyright protection, which is automatic in Australia, will not be affected if you publish under a different name. The only difference is if the writer chooses never to reveal their real identity or it cannot be ascertained and essentially remains anonymous, in which case copyright will only last for seventy years as opposed to the writer’s life plus seventy years.
3) Passing Off
The tort of passing off may also be relevant in two ways. Firstly, if you have chosen a pseudonym which has then gone on to gain goodwill and reputation, it is yours to protect, and you can prevent others from using it. While copyright does not extend to protecting names, the tort of passing off will give you the right to stop others from using the name without your consent. Otherwise, you may also consider trade marking 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. This could be construed as passing off on your part. Always ensure that you have checked to see the name is not registered as a trade mark and that it is not a well-established name.
Writers should make full disclosure to their publishers before taking on a pseudonym and ensure that their publishing contract is signed with their real identity. In choosing a pseudonym, they should do a quick search to ensure that the name does not already have a reputation or has been trade marked by someone else. Talk to an IP lawyer about your rights as a publisher or an author, with respect to pseudonyms.
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