A single tweet on 9 July 2013 by a friend of a partner at a UK law firm to a newspaper journalist unveiled Robert Galbraith to be the latest pseudonym of Joanna Rowling, better known under her pseudonym JK Rowling. As a result of this unfortunate series of events, the use of pseudonyms became headline news. This article looks at the reasons for the use of pseudonyms and some of the legal consequences to be mindful of.
Why use a pseudonym?
The use of pseudonyms in publishing is not a recent phenomenon with high profile examples including George Eliot, Mark Twain, George Orwell and Currer Bell. There are several reasons why they might be used.
Despite the success of female authors, authors such as Joanna Rowling and Erika Leonard (published under the name EL James) use masculine names in order to ensure that their work is accepted by publishers and the public. The lessons of the Bronte sisters and Mary Ann Evans from the 19th Century have not apparently been learnt in the 21st century. Rowling’s publisher suggested the use of a neutral sounding name as he thought young boys may be wary of a book written by a woman. There are other examples where for marketing reasons, the name of an author is changed to fit in with the perceived preferences of the target audience.
An author may use a pseudonym if their name is already used by someone else in order to avoid the risk of confusion. This is also the reason some authors use different names if writing for a different genre. Charles Dodgson published mathematical works but used the name Lewis Carroll for his children’s literature to avoid people identifying the author of the Alice books with mathematical works. Stanley Lieber used the name Stan Lee for his comic books as he wanted to keep his real name for more formal literary works. As any artist will know, their name is capable of acquiring goodwill as their work builds a reputation, and as such it can be worthwhile considering using a different name if branching out into a another genre to avoid their name being diluted or their work pre-judged. An author may fear that their involvement in a particular work may be detrimental to their reputation because it is so different so what their audience is used to.
An author may have personal reasons for wanting to conceal their identity due to their existing reputation or the nature of the subject-matter. For example, Ibn Warraq is the pseudonym used by an author of books critical of Islam fearful of his personal safety. Some authors simply might not want their private life to be affected by their work or may be fearful that is could be a cause of embarrassment. For example Alice Sheldon was an intelligence officer who published science fiction under the name James Tiptree, Jr.
Perhaps the most well-known and controversial use of a pseudonym in Australia was by Helen Darville who wrote the novel, The Hand that Signed the Paper. The story told the bleak account of her Ukrainian father and uncle who witnessed the destruction of their family and home under Stalin’s communists and subsequently joined the SS death squads during the Holocaust to exact revenge. The book was hugely successful and won the prestigious Miles Franklin award in 1995. The work, released under the pseudonym of Helen Demidenko appeared to be autobiographical. The adopted identity of being the daughter of Ukrainian immigrants was further perpetuated by the author who often wore Ukrainian folk costumes in public. When it was revealed the author was the daughter of English, rather than Ukrainian immigrants, a scandal ensued and became one of the most famous literary hoaxes in Australian literature. Although no charges were laid, the admission led to a media furore and sparked controversy amongst Australia’s literary and cultural communities.
If you are considering assuming your own nom de plume and you are in the process of having your work published, it might be worthwhile discussing this with your publisher to examine the pros and cons in your particular circumstances. Your publishing agreement will be able to deal with the use of a pseudonym by agreeing on how the author is to be identified and in the copyright notice to be included within the work. The agreement would be entered into in your real name and for accounting purposes your real name would be included but since the agreement is a private and confidential document, it would not be readily disclosed to the public unless you and your publisher agreed.
Legal considerations when using a pseudonym
Protection of your work under copyright is not affected per se if you do decide to use a pseudonym as there is no requirement under the Copyright Act 1968 (the “Act”) for your name to appear on your work in order for your work to be protected under the Act. Whilst there are no formalities required, the work needs to fall within one of the categories of works or other works and must be recorded in material form. Therefore there is no copyright protection for purely oral work or improvised work which is not recorded in some form. Whilst formalities or registration are not required, the copyright notice © is a useful evidentiary device which can put people on notice that copyright is asserted and by whom. The copyright notice does not however define who the actual copyright owner is.
A consequence of using a pseudonym is in relation to duration of copyright. If we take the example of literary works, the general rule is that the duration of copyright is the life of the author plus seventy years. However, where the work is published under a pseudonym, the duration of copyright is seventy years from the year of first publication unless ‘the identity of the author of the work is generally known or can be ascertained by reasonable inquiry’. The reason for this is simply that if the identity of an author is not known, it is not possible to know when that author may have passed away and therefore when to commence the seventy year period. In the examples that we have looked at of works published under a pseudonym, it would be relatively easy to find out the identity of the author by for example contacting the publishing company or as a matter of public knowledge. However, in the case of self-published works or low-profile authors, a practical way of allowing your identity to be known is to provide contact details after the copyright notice. The efficacy of this step in allowing for the identity of the author to be ascertained depends on the circumstances e.g. whether the contact details can still be utilised for as long as seventy years after first publication.
Under the Act, certain moral rights of an author are protected including the right to be identified as the author of the work. The right to be identified as the author does not require the author’s real name is used since it merely stipulates that ‘the author of a work may be identified by any reasonable form of identification’ but that if the author wishes to be identified in a particular way and this is reasonable, they are to be identified as requested. In a publishing agreement an author can stipulate how they wish to be identified including being referred to by a pseudonym. The fact that an author is referred to be a pseudonym does not affect the legal fact of authorship and the moral rights which are afforded to an author as distinct from the copyright which are exclusive rights of the copyright owner which might be different from the author.
Following on from the earlier discussion of a name being capable of having a reputation, a pseudonym may also be protected under the tort of passing off. The inventor of a pseudonym with a reputation can prevent another person using that pseudonym without consent which could give rise to a misrepresentation to the public that could cause confusion about the source of the pseudonym. In Sykes v John Fairfax & Sons Ltd  1 NSWLR 415,a case about a weekly newspaper column published under a pseudonym invented by a journalist, the court found that the newspaper could not continue to use the pseudonym without the journalist’s consent since he had invented the name and it had a reputation. The right to use the invented name in circumstances which could cause public confusion was therefore a right of the inventor in much the same way that the owner of a trade mark can prevent others using a mark in circumstances which may cause public confusion. Whilst copyright does not protect names as such on the basis that they are not substantive enough to qualify as works, the name can be protected by other means such as in passing off, consumer protection law, fair trading laws or by trade mark law.
When choosing a pseudonym it is important not to choose a name which already is well-known or has a reputation since it may be the cause of an action in passing-off. It is also possible that the chosen name may already be registered as a trade mark which may prevent the use of the same or similar name in relation to the same or similar goods or services. It may also be sensible to consider your target audience to choose a name which might be appropriate. For example, Julie Woodcock writes romantic novels under the name Angela Knight to avoid the double entendre of her real name.
Whilst this article has focused on the literary world, pseudonyms are also used in other artistic fields for example by actors, musicians and performers. Similar considerations apply though when choosing a name. A name quickly becomes representative of your work and the wrong name may become an obstacle. For example, would Elton John have enjoyed as much success as Reginald Dwight or Bono as Paul Hewson? A name can be more than your given name and when used in an artistic arena can be used to create an image or brand.
Praveen Jeetun is a Volunteer Legal Adviser at the Arts Law Centre of Australia.