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Pen Names: A Useful Disguise Or A Legal Risk?

Have you heard of the famous author Mary Evans? What about Charles Dodgson or Sam Clemens? No?

You may know them by their pseudonyms, or ‘pen names’ – George Eliot, Lewis Carroll and Mark Twain.

It’s quite common for artists from all mediums to use pseudonyms. However, there can be legal repercussions. Before signing off with a pen name, you should carefully consider why you may use it, how to protect your real identity, and the risks involved.

Why use a pen name?

Pen names have been a popular tool used by generations of authors to mask their private identity. Today, we may be more familiar with pseudonyms used on the stage or screen, such as Pink, Lady Gaga or Whoopi Goldberg. These artists all rely on the marketability of their personal brand. While it is true that authors often use pen names for this same reason, there are a number of other scenarios that are more traditionally associated with the use of novelist pseudonyms.

Sometimes, an author’s real name is already well known in another field, or genre, and they want to avoid confusion. It may be surprising to you that famed crime novelist, Agatha Christie, also published a number of romance novels under the name Mary Westmacott. Artists can often feel as though they’ve been placed within a genre box and using a different identity can help to break out of that.

Pen names are also used to hide the identities of authors behind controversial or sensitive material. Benjamin Franklin used a pseudonym to disguise his high-profile identity, while writing political satire. While the name George Orwell was used by Eric Blair to protect his family from the embarrassment of being associated with his first publication, a memoir about growing up in poverty.

Pseudonyms can even be used to distance or disassociate an author from work they are not happy with. The pseudonym Alan Smithee was used for many years in the film industry by directors and writers, who felt their work had been compromised.

Whatever the motive may be, pen names are still a valuable identity protecting mechanism for a wide range of authors. In today’s modern world, there are some important issues you should consider before publishing your work under a pen name, such as Alice Addertongue (one of Benjamin Franklin’s many pen names).

What are the risks?

Copyright in Australia is automatic, free and does not require registration. It also does not require the author’s real name to be on the work in order to be granted copyright protection. This means if you write or record under a pen name, the material is still protected.

Your moral right to be identified as the author of a work is also unaffected, by whether you use your real name or not – as long as the way you want to be identified is reasonable.

But there are two important intellectual property issues to consider:

1. The reputation of the pen name; and

2. The duration of copyright with respect to your works.

Reputation

A name (including a pen name) can have a reputation. It’s important to consider whether the name could cause public confusion with an existing name, and whether the name has been registered, as a trade mark.

While you may have strong moral reasons for using a pen name, you could still land yourself in legal hot water for publishing under a trade marked name. However, if your pen name has a strong reputation, it may also be possible for you to trade mark your pen name for marketing purposes.

Duration

Generally, literary, musical, dramatic or artistic works are protected under the Australian Copyright Act for 70 years, after the year that the author dies. However, where the work is created under a pen name, copyright lasts 70 years from when it is first published – potentially much less time.

The exception is if the real identity of the author is “generally known or can be ascertained by reasonable inquiry”. Depending on the reason for using the pseudonym, you may want to consider including some identification or contact details, within the copyright notice. While this could afford you the benefit of longer lasting copyright protection, it will also be a lot easier for the public to reveal your identity.

Protecting your identity

The act of simply slapping a pen name on a publication will not always protect your identity from becoming public. Therefore, there are some additional steps you may wish to consider.

A well-known and contemporary example of the incomplete identity protection that a pseudonym provides, is the media revelation of JK Rowling’s use of the pen name Robert Galbraith.

Rowling possesses a trade marked household name, thanks to the billion dollar Harry Potter empire that she created. The author’s recent works have been outside of the fantasy genre she’s so well known for however, which prompted the use of a pen name.

Unfortunately, it took mere months for the media to figure out who truly wrote the novel The Cuckoo’s Calling. While JK Rowling took this in her stride and, in fact, saw a large boost in book sales, not all users of pen names would be comfortable with such a public revelation.

One form of extra coverage authors could impose is the insertion of a confidentiality clause in publishing contracts. Swearing your publisher to secrecy may not totally prevent your identity from being leaked, but it does give you an extra layer of protection and comfort.

Final word

Pen names can be a very useful tool to disguise your identity, for all sorts of different reasons. But they do have an impact on your legal rights, and you should understand the consequences before deciding to use one.