To Have and Have Not (A Pseudonym, That Is)
[Originally published in the magazine Romance Writers Report, September 2011.]
Currer Bell. Ellis Bell. George Eliot. Lewis Carroll. Mark Twain. George Sand. J.D. Robb.
What do all of these authors have in common? They used pseudonyms – pen names, noms de plume. Today, we are more familiar with some of their given names (Charlotte Bronte and Emily Bronte, for example.) But many pen names become permanent reference points for readers and writers. The decision to adopt a pseudonym should not be taken lightly. Rather, authors should consider the legal and practical aspects about assuming a new name. In preparing this article, I surveyed nearly 20 authors who use pen names. In some cases, their answers are presented anonymously below.
One brief disclaimer: This article does not constitute specific legal advice for your situation. It does not create an attorney-client relationship or any other expectation of confidentiality, nor is it an offer of representation.
Why Make the Leap?
Authors cite a variety of reasons for adopting pen names, including:
- Privacy concerns, particularly when the author has been the subject of stalking or other criminal actions,
- Desire to separate a “day job” from writing, particularly when the author is an educator,
- Challenging given name, particularly when that name is clearly a gender not desired for a genre, or is difficult to spell or pronounce, or is similar or identical to another published author’s name, or is so common that it would create publicity and marketing problems,
- Prolific writing, particularly when an author produces more than three books a year,
- Diverse writing, particularly when an author publishes sweet or young adult fiction along with erotica, and
- Publisher’s requirement (although Harlequin no longer mandates pen names for its authors, many authors continue to work under pseudonyms selected when that requirement was in place.)
To Tell the Truth
Depending on the reason for an author adopting a pseudonym, she might choose to keep her pen name a close secret, or she might openly acknowledge her alter-ego. Approximately 25% of the respondents in my survey vehemently expressed the desire to keep their noms de plume confidential.
Even in cases where authors strictly protect their pen names from public disclosure, their agents and publishers usually know the truth. Contracts, payments, and tax matters are typically managed in the given name of the author. In one extreme instant where an author feared for her life if her name was publicly exposed, she conducted all business through a chain of corporations, obscuring her individual identity while meeting all legal requirements to pay taxes on income. All other pseudonymous authors, though, were comfortable with their business partners knowing their true identity.
A handful of local and state jurisdictions require “doing business as (d/b/a)” registrations for individuals who work under names other than their own. Typically, those requirements exist so that local entities can collect business license taxes. If you intend to use a pen name, check with your specific municipality, county, and state to determine if you need to make additional filings.
Special Circumstances – Copyright
We’re all familiar with the copyright notice in our books – © 2011 Mindy Klasky
Authors who use pen names have a special decision to make with that legal notice. By statute, if an author uses her given name, then the duration of her copyright is the life of the author plus 70 years. If she uses her pen name, the term of the copyright is 95 years from publication or 120 years from creation of the work (whichever is shorter.) Getting the best “deal” will obviously depend on the duration of the author’s life.
Using a pen name does not extend an author’s intellectual property rights beyond copyright. For example, a pseudonym is not equivalent to a trademark.* In strict legal terms, a trademark indicates a source, sponsorship, or origin of a product. For example, “Harlequin Special Edition” denotes a specific type of category romance with an emphasis on hearth and home, published by a single publisher. While an author’s name indicates that she has created a book, that creation is not equivalent to the stringent legal standard for a trademark. A pseudonym does not change that basic legal tenet.
Pen Names Don’t Work Legal Magic
In fact, with the exception of the possible copyright extension noted above, pseudonyms do not connote any special legal privileges. Authors still need to conform to legal standards with regard to tort law, tax law, and contractual requirements.
For example, most publishing contracts contain a long list of warranties made by an author to a publisher, with regard to a specific book or books. Typical warranties include:
- “Author is the sole author and proprietor of the Works.”
- “The Works do not infringe any statutory or common law copyright, trademark, or other intellectual property rights.”
- “Author has full power and authority to make this agreement.”
- “The Works do not invade the right of privacy of any third person, or contain any matter libelous to any third person.”
- “The Works are not obscene.”
These common clauses are phrased in terms of the author’s obligation. They are not linked to an author’s specific public persona, to any specific legal name or pen name. The first two warranties above indicate that the works in question are not plagiarized. An author cannot merely change her name and then steal the intellectual property of another author.
Similarly, authors owe taxes on their income based on their individual tax identification numbers. (For United States individuals, this is a Social Security Number; for corporations, it is a Federal Tax I.D.) Social security numbers and federal tax I.D.s are not issued to fictitious entities; rather, authors must report income using the numbers associated with their legal names. Therefore, authors using pen names are not exempt from paying local, state, or federal taxes.
Pen names are also not a shield against breach of contract claims, if a contract contains an option clause or a non-competition clause. Once again, those legal requirements are assumed by individuals, not by specific names. Adopting a pseudonym does not re-write the basic agreement undertaken by an author. (Note, however, that some non-compete clauses are written specifically to permit an author to assume a pen name – “Author shall not publish another work of novel length romance fiction under the name Abigail Author for the duration of this agreement.”)
Finally, pseudonyms do not allow authors to avoid the CAN-SPAM law, which establishes requirements for commercial messages, giving recipients the right to remove themselves from mailing lists. Under CAN-SPAM, authors must provide a valid physical postal address to each person who receives a commercial message. That address may be a current street address, a post office box, or a private mailbox. (Even under CAN-SPAM, though, a secret pen name can be preserved for readers if the post office is informed that mail for Wren Writer and Simone Pseudonym will be arriving at the same physical location.)
A Rose By Any Other Name
The choice of a pen name is not trivial. Alayna Williams (Rogue Oracle), who also writes as Laura Bickle says, “A pseudonym is like tattoo ink. Choose something that will become part of you.”
In our ever-expanding world of social media, it is important to assess the availability of a pen name on different networks. Before making a final decision, almost all authors surveyed determined that their pseudonym was available as a domain name. A handful of authors, though, promote their work on websites that acknowledge their pen names indirectly. For example, Laurie Schnebly (Believable Characters: Creating With Enneagrams) writes nonfiction under her legal name and fiction as Laurie Campbell (Wrong Twin, Right Man). She promotes all of her work at www.booklaurie.com. Similarly Kristine Kathryn Rusch writes under that name, as well as Kris Nelscott, Kristine Grayson, and Kristine Dexter. All of her pen names are promoted at www.kriswrites.com. In addition to checking on domain names, authors should verify the availability of their new name in the primary channels where they intend to promote (e.g., Twitter, Facebook, Flickr, etc.)
Let’s Be Practical
Pen names present some practical challenges in social interactions, particularly at conferences and signings. Pseudonymous authors must remember to respond to their assumed name, and they may need to modify nameplates or other signage on the fly. Some authors who disclose both given names and pen names have printed materials to assist themselves and others. D. Renee Bagby, writing as Zenobia Renquist (Caveat Emptor 2: Trapped Lover) notes: “My business card is double-sided to show both names; therefore, I don’t have to give out two separate cards.”
Authors sometimes allow their pen names to take on distinct personalities. More than one respondent referred to herself as “schizophrenic” as she balanced her real and assumed names. Jackie Ivie, though, went the furthest: “I rarely wear make-up or a dress, but Jackie Ivie wouldn’t leave the hotel room without full hair and make-up and 4-5 inch heels…. I have a lot of fun being Jackie, but it can be a pain when traveling. I have more baggage, and I don’t look much like my ID so security can take longer!”
Ivie’s anecdote underscores that authors should make all flight reservations under their legal name rather than their pen names, keeping in mind that Department of Homeland Security restrictions will require legal identification for boarding planes and trains, and for renting automobiles. Most hotels now require reservations to be made under a legal name as well, with appropriate photo identification provided at check-in.
Enough is Enough!
Occasionally, pen names can become more of a burden than they’re worth. One author recounted: “I tried to juggle two pen names before I was published – one for erotic romance, one for mainstream. That meant I was three people in public. It was waaaaay too confusing for me; I never knew how to refer to myself at conferences. Fortunately, only the erotic romance took off, and I could drop the other pen name before people even really knew it existed.” Another author confesses, “If I had it all to do over again, I probably wouldn’t use a pen name, even though I have enjoyed the slight anonymity.”
Several authors advised that social media are the most vulnerable points in protecting pen names from inadvertent disclosure. The possibility of tweeting from the wrong account, or sending email from the improper service increases with the number of social interactions. Jeffe Kennedy points out that PayPal is a special challenge because the online financial service strongly favors its users interacting with legal names.
While no pseudonym will help an author skirt the law, the right pen name may help build new communities of readers, strengthening an author’s career far beyond its original boundaries.
This article would not have been possible without the assistance of many authors, including those writing as: Laura Bickle (Embers), Kylie Brant (Deadly Sins), Laurie Campbell (Wrong Twin, Right Man), Leigh Court (Conqueror Vanquished), Megan Crane (I Love the 80s), Caitlin Crews (Katrakis’s Sweet Prize), Adele Dubois (Rev Me Twice), Tamara Hogan (Taste Me), Kinsey W. Holley (Yours Mine and Howls), Jackie Ivie (Forever Knight), Jeffe Kennedy (Sapphire), Ashley March (Romancing the Countess), Lynne Marshall (The Heart Doctor and the Baby), K.A. Mitchell (Bad Company), Kaitlin O’Riley (It Happened One Christmas), Jennifer Paris (Petals and Thorns), Nina Pierce (Blind Love), Zenobia Renquist (Caveat Emptor 2: Trapped Lover), Laurie Schnebly (Believable Characters: Creating With Enneagrams), Jordan Summers (Blood Lite 2), and Alayna Williams (Rogue Oracle).
* Trademarks are a valuable form of intellectual property, in part, because they can be maintained forever, so long as the trademark is continuously used on a product, and appropriate paperwork is filed with the government. Trademarks, unlike copyrights, do not inevitably expire.