Legal pen-name issue

For that matter, what's to stop you from using the name Stephen King? He has no exclusive legal right to it, does he?

ejket said:

For that matter, what's to stop you from using the name Stephen King? He has no exclusive legal right to it, does he?

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True, but it would be rather blatant and I doubt if a publisher would condone it.

There is an author called Geoffrey Archer, which can easily be confused with the best-selling Jeffrey Archer. He has been asked what it was like in prison, so he may also have had book sales from the similarity of names.

I suppose that, in the example given by Captain Morgan, it would be hard to prove the writer using the pseudonym had prior knowledge of King's intention to use the same name.

Ahoy, Cap'n,

Ye can find shiploads of specific information on the subject with a Google search. More than a post can handle.

See ya on the crow's nest!

Choose whatever pen name you like, and let your agent, your publisher and the publisher's legal advisors worry about the execution, and about defending it should someone else decide to publish under the same name.

-Derek

Unless this new author is self-publishing or going with a micro-press, one would assume the publishers would notice two "debut" authors with identical names writing in the same genre.

As a general legal rule, you can use any name you want, PROVIDED it's not used to confuse or defraud.

If someone used a name that he KNOWS will confuse the public into buying his books, thinking they're written by someone else, that would fall into the category of prohibited name uses. Proving the knowledge might be difficult, but that's the theory, anyway.

JD, not giving legal advice, just general information

My thoughts are if your name is the same as a famous author - it would be extremely confusing, and difficult to sell.

My problem is - both my first and last name are so common that there may be ten or more authors with my name, and would never know, unless one becomes world famous. Then, that would negatively affect me, as peopl would think I was that writer.

I once did the name look up website to see how common my name is. Scary how many of me there are!

I'm sure there is another Stephen King somewhere that might have written a thing or two. Even then I'd hope he would write under Stephen B. King or something.

As for deliberately using another writer's pen name as your own, legally I don't think it can be stopped...then anything can happen in a courtroom. But the final law is public opinion. You can only fool that court so long. Sure, after you are exposed you can change your name to Dean Koontz and do it again, But if you are going to put out the effort to write it's pretty stupid not to make a name for yourself.

As for a coincidental release of two authors with the same name, I'm sure one of them would have a signifier appended to his name on the next release. Confusion makes for bad business all around.

Captain Morgan said:

I have an interesting question and so far no one really knows the answere.

Let's assume Stephen King uses yet another pen name for a new book. Another writer, gets wind of this from an editorial department, and suddenly uses the same pen name for his own horror novel about to hit the shelves.

Naturally, it's a matter of time before the public catches on the new name King is writing under, and hence the other author will get boosted sales by the public falsely thinking THAT book too is written by Mr. King.

I had assumed that authors just jot down any made up pen name to a publisher and that's the end of that. But if this is the case, then there is no real LEGAL entitlement to that name, and hence can't anyone else do what they want?

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Nope, they can't do what they want. Probably the first thing that would happen is you, your publisher, and perhaps also your agent would get the a$$es sued off you for false designation of origin under the Lanham Act. "False designation of origin" means putting someone else's name--a person's name or a company's name--on work they didn't do, or on a product they didn't make. Example: selling counterfeit Cartier watches--Cartier would sue you; selling CDs that say they're by Britney Spears but aren't--Britney Spears would sue you; and so on. You all would thus get your a$$es sued off by Stephen King and his publisher. They might also sue you under various state laws against unfair competition.

If your name is legally Stephen King, no middle initial, you could probably publish under the name Stephen King.

If your name is Elwood B. Dinwiddie, you can't publish under the pseudonym "Stephen King" because you would be infringing on Mr. King's exploitation rights with no stronger prior claim.

Generally, authors use their middle initials or middle names when there are two or more people with the same name: I'm thinking of the American novelists Mary Morris and Mary McGarry Morris, for instance.

The writer Larry L. King (best known for the book/play/musical/movie The Best Little Whorehouse in Texas) uses his middle initial so as not to be confused with the radio and television host.

Michael Keaton (actor, the first movie Batman) was born Michael Douglas.

At the time he started acting, there was already a Michael Douglas (Wall Street, etc) and a Mike Douglas (daytime talk show host) in the Guild--where only one person can have a name in a position. Meaning an actor, a best boy and an assistant director can have the same name, but not two actors.

So ol' Mikey decided to adopt the name of one of his favorite actresses, Diane Keaton. And thus Michael Keaton the actor was registered. He legally kept Douglas and his son performs under it.

Still, if a new author tried to use Ann E Hall for a women's series or Stephan K Ing for horror, I think there would be some resistance from the publisher's legal department long before the first book got printed.

Legally, no one can prevent you (in most arenas) from using your given legal name. But why create problems? Its not worth the five extra readers you might get from curiosity. They might end up being the only ones!

Interesting bit: when the two "Keatons" finally met and Michael told her the story, she admitted Keaton wasn't her real name! She was born Diane Hall. Her family still calls her Annie. So if you ever wondered where Woody Allen got the name "Annie Hall" from-now you know!

IceCreamEmpress said:

If your name is legally Stephen King, no middle initial, you could probably publish under the name Stephen King.

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If you were publishing novels (as opposed to, say, articles in a magazine for professional roofing contractors or whatever!), you would still be vulnerable to a lawsuit under the Lanham Act and/or state unfair competition laws. Think of it as a trademark: if your name is Bob Q. Public and there is already, say, a moving company in your town called the Bob Q. Public Moving Company, you CANNOT start your own moving company with that name. In all likelihood, if the existing Bob Q. Public Moving Company is well established, you can't even start one called something slightly different (e.g. "Bob Q. Public Movers"). Even if that's your own real name and you want to open a moving company, you can't do it under that name, because someone else got there first. Likewise, Stephen King is a well-known novelist. If you write novels under that name, even if it's your legal name, you will likely not have to wait long before you're served with a complaint (i.e. sued) by his publisher. If you write in an area that no rational person would think was THE Stephen King (e.g., obscure trade journals), you'll probably be all right, but otherwise...

It's just like if your last name was Metro, and you had friends called Goldwyn and Mayer, you guys could not start a movie company called Metro Goldwyn Mayer (or ever Mayer Goldwyn Metro). You probably couldn't even start any type of entertainment or media company with that name, for the same reason: if there were a book publisher called Metro Goldwyn Mayer, everyone would think it was run by the movie company, because books and movies are similar enough for people to expect that kind of crossover.

The basic idea is, if your business name is likely to confuse the public into thinking it is (or is run by) some other, pre-existing business, then you cannot use that business name, even if it is your real, legal name. You've got to come up with a different name, or at least throw in an initial. Otherwise, the buying public would get confused and the existing business would lose control over its own reputation (because people would hear about your company and think they were hearing about the other company, and vice versa). You're not allowed to piggyback on the good reputation that another company worked hard to build, even if the name they're using is your actual legal name.

ideagirl, you're making such a firm statement that I'd like to know what your qualifications are for making it, because it directly contradicts what I've seen in the book world. Are you a lawyer, and have you read the specifics of the law you're quoting?

I personally think you're making a jump here. While it's true that you can't have two businesses or companies with the same name, an author is not a business or company unless he or she is legally registered as one. And trademarks have to be registered to be protected. Nor do I think that a book with an author's name on it is in the same category under the law as a watch with a trademarked name on it.

There are, and will continue to be, cases where two authors have the same name. That's not an infringement of copyright, unless it's done with intent to deceive the public. That being said, publishers and agents would probably ask you to use a middle initial or a pseudonym if your name really is Stephen King, because it really wouldn't be good for your career in the long run, and it would be really bad for the publisher.

There is an exception to this, in the form of a pseudonym that's owned by a publisher. Some romance authors, and many series authors, publish with a particular publisher or for a particular series of books (think Nancy Drew and Hardy Boys) under a pseudonym that's actually owned by the publisher, and they're not permitted to use that particular pseudonym for other books or series or publishers or whatever. But in that case, the publishers have gone and actually registered the trade name.

ideagirl said:

If you were publishing novels (as opposed to, say, articles in a magazine for professional roofing contractors or whatever!), you would still be vulnerable to a lawsuit under the Lanham Act and/or state unfair competition laws.

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I don't think that would hold, though, if someone's legal name was "Stephen King," no middle initial, and it was made clear via pictures and biographical information on the book that this "Stephen King" is a 27-year-old African-American man from Mississippi (for instance).

The difference between this and the "Bob Q. Public Moving Company" issue is that a moving company could be called anything--"MoveFast Inc" or "Groovy Movers" or whatever--but an author has to use an actual name, either their legal name or a pseudonym. They can't use "WriteFast Inc." or "Groovy Writing." And I'm not sure that the Lanham Act would be interpreted by every judge as requiring that a writer substitute a pseudonym for his or her legal name if there is already another writer with that legal name.

But I agree that it would certainly go to court. And nobody needs that hassle, so I would make up a middle initial or a pseudonym posthaste. "Steve Q. King" would be awesome!

Alphabeter said:

Michael Keaton (actor, the first movie Batman) was born Michael Douglas.

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And Michael Douglas had to use Michael even though he had always been referred to as Mike Douglas, because there was already someone named Mike Douglas. But actors' names are different -- there's a rule in SAG that disallow the same name being used; it's to avoid confusion and payment issues, as well as billing.

With publishing, I'm not aware of this restriction, legal or not. Someone could very well publish under the name Stephen King, especially if that's his real name. Whether his publisher would allow that is something else.

I hope it's all right - there is at least one author with my name. Luckily she wrote a non fiction book about feminism and the new German cinema so I doubt we'll clash.

There is another author with my name as well. She writes educational books and I write history books.

And someone with my name writes non-fiction adventure racing survival guides. Which fortunately isn't likely to be confused with hack alt. history vampyre fantasy adventure. If we did happen to conflict? I'd let my publisher worry about that.

-Derek

Question: Where does one look up to see if another writer has the same name? I am sure there is one, just no idea what they might write.

adtabb said:

Question: Where does one look up to see if another writer has the same name? I am sure there is one, just no idea what they might write.

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If you don't know of their existence, I wouldn't worry about it. But for completeness, if you check Amazon.com, Amazon.co.uk, Amazon.ca, Dymocks.com.au, and NewZealandBooks.co.nz and don't find anyone of the same name, you can be pretty confident that nobody with your name is publishing in the English-speaking world.

And don't forget "the" Google.
Use every search engine you can--google, yahoo, ask, aol, cuil (a combo one)...as well as amazon, barnes & noble, half, and any place that you can buy books online.
But NOT publishamerica.com and any other vanity/scam publisher. Those books are unlikely to be seen by enough people to confuse author names.

A well-researched name is forearmed.

Yeshanu said:

ideagirl, you're making such a firm statement that I'd like to know what your qualifications are for making it, because it directly contradicts what I've seen in the book world. Are you a lawyer, and have you read the specifics of the law you're quoting?

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I am an IP (intellectual property) lawyer, but you don't have to be an IP lawyer to know this. Generally it comes up in the basic IP class that's an elective in most/all law schools ("basic" in the sense that it just teaches introductory copyright, patent and trademark/trade dress law, and is a prerequisite for more advanced courses in each of those areas). It comes up in the basic class because it's so counterintuitive--"What, you don't necessarily have the right to use YOUR OWN NAME in your business?!?!?!" Nope, you don't--not if someone else got there first. Understanding that very counterintuitive concept helps you understand trademark in general.

Yeshanu said:

While it's true that you can't have two businesses or companies with the same name, an author is not a business or company unless he or she is legally registered as one. And trademarks have to be registered to be protected.

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No, they don't need to be registered. When I'm saying "trademark" here, I'm not just talking about federally registered trademarks--federal trademark law evolved from state-level common law legal doctrines, and those doctrines still exist--by which I mean, they still have legal force as to those areas that are not covered by federal trademark law. So the name or mark does not have to be registered anywhere, let alone federally, in order to be protected. Federal registration is far and away the best protection, but it's not the only protection the law provides. The basic state-level legal doctrine that includes these remaining state-level protections is "unfair competition," which I mention so you can google it. But I'm just using the term "trademark" as shorthand.

Yeshanu said:

Nor do I think that a book with an author's name on it is in the same category under the law as a watch with a trademarked name on it.

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You're right, it's not, because it's not a federally registered trademark--but it still is protected. Here's why: because the main point of trademark/unfair competition law is to protect consumers from being duped into thinking they're buying X when in fact they're buying Y. If you think you're buying a Stephen King book, when in fact you're buying a book by some completely different dude who also happens to be named Stephen King, there are laws that will protect you from that. You have the right not to waste your money on something that isn't what you reasonably think it is.

Yeshanu said:

There are, and will continue to be, cases where two authors have the same name. That's not an infringement of copyright, unless it's done with intent to deceive the public.

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Copyright's a completely separate doctrine (which, by the way, requires no intent to deceive). The issue here is trademark/unfair competition. Two authors with the same name can coexist--but not if one of them got famous first. I'm simplifying a little, but basically this is the deal: it's the getting famous that gives the first author's name protection. If she weren't famous, the public wouldn't be deceived because they wouldn't have any idea who she was in the first place. People see a Stephen King book in the store and think, "Hey, I read Carrie, that was cool--maybe I'll buy this one too!" That's because Stephen King is famous. Because he's famous, people associate his name with a particular kind and quality of novel. So if you publish novels under the same name, even if it's your real name, people will think the novels are by him--they will be deceived (intentionally or not). So, the law won't let that happen.

adtabb said:

Question: Where does one look up to see if another writer has the same name? I am sure there is one, just no idea what they might write.

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Just look on Amazon. Or google.

And there's a vampire porn actress from the 80s with my exact name. Unfortunately, I write 80s vampire porn screenplays. Thanks, IMDb appearing on the first page of Google!


Uh....


Honestly, even without reading ideagirl's comments, I'd lean away from manipulating the readers...it doesn't sound like this is your situation, but if any lurkers named Stephen No Middle Initial King are reading this, you've been warned.

S N M I King has um...an interesting ring to it?