Q&A: Protection Pen Name or Series Name

Posted by Dan Steven on Dec 13, 2006

Q.    Can I legally protect my pen name, or the name of my mystery series?  What about my web site?

A.   Many novelists use pen names or pseudonyms and many also have a “branded” series of mysteries, usually named after the chief character (e.g., Noreen Wald’s “Kate Kennedy South Florida Senior Sleuth” series.)  What such writers have in common is the need to protect the goodwill and value of their pen name and/or series.  To accomplish this, writers must understand both copyright and trademark law.

When filling out a copyright registration form (FormTX), the Copyright Office allows you or your publisher to list either just a pen name or your real name.  The difference in protection is that if you use your real name, protection for the work extends for your life plus seventy years; if you use a pseudonym, the term of protection is 95 years from the publication of the work, or 120 years from the creation of the work, whichever period expires first.  If, however, after filing the original application in a pen name, the author’s identity is later revealed in the records, the term reverts to the life of the author plus 70 years.

UnderU.S.copyright law, however, names, slogans, and titles cannot be copyrighted.  This means that copyright will NOT prevent others from using your pen name, or the name of your mystery series.

Pen names and series names, however, are entitled to protection under state laws governing unfair competition and under the federal Lanham Act, which prohibits “false designations of origin, false descriptions, and dilution.”  These laws give you the right to bring a civil action against someone appropriating your pseudonym or series title.

Further, if a pseudonym or series name becomes identified with the person using the name and/or the books and other products authored under the name, it may be entitled to protection under trademark law, although generally this is limited to the sale of ancillary products.  If you think your pen name or series name is entitled to trademark protection, you should consult an intellectual property lawyer; also see my article, “Do You Need A Trademark?” at publishlawyer.com/do-you-need-a-trademark, which explains these concepts in greater detail.

CAUTION: If your pen name also is the name of a living individual, you must either obtain that person’s consent or file a disclaimer stating that the name is not that of any real person.   Pen names also cannot be registered if they are the name of a deceased President of theUnited Statesduring the life of the President’s widow except with the consent of the President’s widow.

What about your web site name?  Internet domain names are treated differently under the law.  Registration of your domain name by the Internet Corporation for Assigned Names and Numbers (ICANN) is separate from trademark registration.  Nevertheless, you may be able to register your domain name as a trademark, provided the name is being used in connection with a site that is offering a service or product.

Daniel Steven is Chairman of the MWA Contracts and Grievances Committee and a publishing and media attorney (www.publishlawyer.com).  This column provides general legal information; consult an attorney for application of the law to your specific circumstances. © 2006 Daniel Steven