Having a pen name is one of the oldest traditions of being a writer. Even Homer, the famed author of the Illiad, is more of a mythical figure than a real person.
Writer’s select pen names for a variety of reasons. Some feel their “real” lives might be harmed if it is known what they write, others just think a new name sounds better and still others want to try two different writing styles or subjects without interference from past works. In fact, even publishers can demand an author use a pen name, as was the case with J.K. Rowling.
But while there are many good reasons to select a pen name for your writing, being anonymous or pseudonymous comes with a set of legal risks that one has to consider and be aware of.
Simply put, both the law and society in general treats anonymous works differently and it’s important to at least be aware of the problems and challenges an anonymous author will face.
How the Law Changes
To be clear, you have all of the same rights in an anonymous or pseudonymous that you have in one you put your name on. Using a pen name does not alter the protections you have in your work, but it does alter the time frame for copyright protection.
The reason is that copyright law treats anonymous works in much the same way it does works of corporate authorship. Where, with a work of individual authorship, with a known author, the copyright term is the life of the author plus 70 years, for an anonymous work, it is either 120 years from creation or 95 years after publication, whichever comes first.
While that might not seem like a major problem, and for most works it isn’t, in the rare cases where a copyrighted work has enough value and longevity to be worth willing to heirs, it can become a thorny issue.
However, there is an easy way around this. Should the author of an anonymous work become known while the work is still under copyright, then the work is treated the same as if he or she were known the entire time (PDF). This means that you can publish a work under a pen name and, if you decide that you want the same copyright duration as a known author, you can come forward at a later date.
But the current law isn’t the only potential hurdle. Rather, one also has to keep an eye on pending legislation as well.
Orphan Works Issues
One of the bigger challenges facing copyright law is the issue of orphan works.
Orphan works are basically copyrighted works for which the owner can not be located. It has become an increasing issue as copyright has come to be applied to a work upon creation and the copyright term has been extended, often well over a century.
The problem with orphan works is that those who wish to use the work, whether it’s making copies for preservation or for commercial exploitation, can’t get permission to do so. Since using an orphan work without permission would be an infringement, most shy away from making copies of such works.
However, legislation has been proposed in the U.S. and abroad to deal with this problem by granting exemptions to allow use of orphan works. Though the proposals have varied, and are a topic of a future column here, they’ve all centered around finding ways to allow others to copy orphan works without fear of being liable for copyright infringement.
The problem for anonymous authors is that their work is more likely to become an orphan than others. Though a searcher might be able to track down the name of “John Smith”, if they can’t determine who he is or at least find who manages the rights for his work, it might be considered an orphan just because the pseudonym lead to a dead end.
Though all of the current bills on the topic so far have died, at least in the U.S. and UK, it’s an issue that will come up again and soon and, at some point, legislation will likely be passed. As such, even though it is primarily visual artists that have the most to fear, it’s a wise move for all authors to begin thinking about it.
Unfortunately though, the law isn’t the only issue at hand. Anonymous works themselves come with problems completely independent of the current legal climate.
Contracts, Disputes and Other Issues
Perhaps the biggest issue with anonymous works is also the most simple: That anyone can claim them.
If you publish a work as “John Smith” and no one knows who that is, anyone can claim to be that person. This means two things:
- Plagiarism is Easier: It is much easier for someone to claim to be the author of pseudonymous work, making it more likely they will do so.
- Contracts Are More Complicated: If you try to sell or license such a work, you’re going to have an uphill battle as you have to both verify your authorship and deal with your pen name in the negotiations.
In short, authorship issues and disputes are common with anonymous and pseudonymous works, especially those that are registered without the real author’s name, so you need to think about these issues carefully when you choose to go down this path.
In fact, you may want to focus on a form of controlled anonymity where critical individuals know who you are, such as your clients, but your readers don’t. Though it can be almost impossible to keep such information from leaking out if interest is high enough, it can be adequate for those who don’t need a high level of anonymity.
None of this is to say that you shouldn’t post works anonymously or pseudonymously. There are many legitimate reasons for doing so, both personal and business-related, but you need to be aware of the issues and potential drawbacks that come with it.
A pen name can be a very powerful tool for a writer, it’s just one that comes with a few drawbacks and headaches. If you’re aware of them and work to mitigate them, they shouldn’t have much effect at all.
In the end, the key is to just be aware of your rights and of the consequences of your action. If you know what’s going on, you can make good judgements about what works best for you and work to stop problems before they begin.
Have a question about the law and freelance writing? Either leave a comment below or contact me directly if you wish to keep the information private (However, please mention that it is a suggestion for Freelance Writing Jobs). This column will be determined largely by your suggestions and questions so let me know what you want to know about.
I am not an attorney and nothing in this article should be taken as legal advice.