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Wednesday, June 1, 2011

Writing and the Law, Part III: Pen Names, Copyrights, and Business Entities


I belong to several writing loops. During my travels, from time to time, I see statements of the law that are inaccurate. The other day, I came across a discussion about pen names, copyright notices, and business entities on one of my loops. My primary area of expertise is business law (corporate and securities), and my secondary area is intellectual property (copyright and trademark). So these posts couldn’t help but catch my attention.

While I was glad to see that some of the statements were accurate, I was troubled to see that some weren’t. For example, I read statements to this effect: (1) an author’s legal name has to be used in the copyright notice; (2) a corporation or LLC is no big deal to form; (3) an author can use a DBA to establish a pen name; (4) a corporation or LLC can use a pen name without consequence; (5) a LLC provides better protection from personal liability than a corporation; (6) a business entity can protect an author’s privacy; and (7) an agent can advise an author on legal matters.

The above seven statements are all false.

Let’s take a twirl around some of the concepts.

A. COPYRIGHT, COPYRIGHT NOTICE, AND COPYRIGHT REGISTRATION

An author's work is under copyright protection the moment it is created and fixed in a tangible form.


When an author uses a copyright notice on her ms, or includes one at the bottom of a post on her blog, she gives notice to the readers that she claims a copyright for that writing. Here’s some general information about the copyright notice on the U.S. Copyright Office's website:

"Use of the notice may be important because it informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication. Furthermore, in the event that a work is infringed, if a proper notice of copyright appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in section 504(c)(2) of the copyright law. Innocent infringement occurs when the infringer did not realize that the work was protected. The use of the copyright notice is the responsibility of the copyright owner and does not require advance permission from, or registration with, the Copyright Office."

For more general info on copyrights, see http://www.copyright.gov/circs/circ1.pdf


However, print publishers register (in the name of the author) every work they'll publish in the U.S. by filing an application with the U.S. Copyright Office. In fact, those same publishers will take advantage of the protections of the law afforded by every country in which they'll publish the work (think Harlequin). But let's focus on U.S. law.

The U.S. Copyright Office has some wonderful circulars about copyright. Here is a statement from the above-referenced circular on the advantages of registration of a work:

"Even though registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration.

Among these advantages are the following:

• Registration establishes a public record of the copyright claim.

• Before an infringement suit may be filed in court, registration is necessary for works of U. S. origin.

• If made before or within five years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.

• If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.

• Registration allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies."

So, no, a publisher doesn't just include a copyright notice on a page inside the book. If they're a print publisher, they'll have put their dollars behind the editing, production, distribution and perhaps even promotion of a book. They'll want to afford themselves, or place the author in a position to afford herself/himself, of the maximum protection under the law.

I wonder, though, how many e-publishers are filing copyright applications on behalf of their authors. This isn't to say that an e-published author doesn't have the same reason for wanting her work registered as a print published author, just that an e-publisher mightn't have the same incentive to expend the time and money to register a work as a print publisher has. [Note: See postscript below for follow-up information on this question.]


Moving on, contrary to what someone said, an author isn't required to use her/his legal name in a copyright notice. Likewise, an author isn’t required to register a work with the U.S. Copyright Office in her/his legal name. Here’s part of the instructions for filling in the author's name on Form TX (literary copyright application):

“If the work is “pseudonymous” you may: (1) leave the line blank; or (2) give the pseudonym and identify it as such (for example: “Huntley Haverstock, pseudonym”); or (3) reveal the author’s name, making clear which is the real name and which is the pseudonym (for example, “Judith Barton, whose pseudonym is Madeline Elster”).”

For more on Form TX, see http://www.copyright.gov/forms/formtx.pdf

The best example I can give you off the top of my head is Penny Jordan. Penny writes for Harlequin Presents. Her copyright notice is in the name of Penny Jordan, but her legal name is Penny Halsall. Penny uses the third choice on the application—“Penny Jordan, pseud. of Penny Halsall.” To see the info on one of her recent copyright applications, click on http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?Search_Arg=Penny+Jordan&Search_Code=NALL&PID=faRvBkjY-QB2061NOY5seZwQlD&SEQ=20110531065603&CNT=25&HIST=1 

B. THE OFTEN MISUNDERSTOOD DBA

A DBA isn’t a form of business entity. The primary purpose of a DBA is to provide the public with the names of the owners behind a fictitious name being used by a business. In New York, any sole proprietor, corporation, LLC, or other business entity that uses a fictitious name in connection with a business must file, or cause to be filed, via the Secretary of State, a certificate of assumed name in the clerk's office of every county in which they do business. There are 63 counties in New York.

Someone suggested that an author could form a corporation or LLC, then use a pen name (which would be the "product" of the corporation or LLC) on the cover of books so that the author's real name would show up nowhere. The pen name wouldn’t be the “product” of the corporation or LLC. The pen name would be a fictitious name used by the corporation or LLC. So, the corporation or LLC would have to file a certificate of assumed name to use the pen name, once again in every county in which it does business.

And that’s the most important point of this section. A corporation and LLC (as well as a sole proprietor) must file, or cause to be filed, a certificate of assumed name in every county in which it does business under a fictitious name. More, as you'll see in the next section, an author's legal name will always show up somewhere.

C. SOME TYPES OF BUSINESS ENTITIES

The formation and use of corporations and LLCs by authors isn't all that common. There are certain requirements for, and inherent costs to, the formation and continuing operation of business entities as well as limitations to their possible benefit to an author.

Let’s take a cursory look at some of them (and I do mean cursory because I could write/talk at length about each of them). My comments will be skewed toward New York because, although I’m admitted to practice in three jurisdictions, I currently practice in New York. However, I’d be surprised to discover that most, if not all, other states don’t have similar provisions.

1. Business Corporation

For this section, let’s assume we’re talking a Subchapter S corporation, not a C corporation such as IBM.

The formation of a corporation isn’t that costly (in terms of filing fee payable to the secretary of state), but there are many post-formation requirements. Someone suggested that an author could just use an incorporation service, and someone else suggested that an author shouldn't do this. There are on-line companies that charge as little as $99 for the filing of a certificate of incorporation. The bottom line on this is that you get what you pay for because this filing is only the birth of a legal entity. Think of what comes after the birth of a child. A service company doesn't even give you a diaper and blanket in which to bring the baby home.

The filing of a certificate of incorporation is just the first in a lifetime of documents for a corporation. Following the incorporation, the corporation must adopt initial authorizing resolutions (the ratification of all actions by the incorporator, the election of the first board of directors, the election of officers, the authorization of the treasurer to open a bank account and apply with the IRS for a taxpayer identification number, the authorization of the president and secretary to issue stock, the adoption of by-laws, the procurement of checks and other items, etc.). After the adoption of the authorizing resolutions, the appropriate individual(s) must carry out the acts authorized.

In addition, after the initial resolutions, anytime a corporation is to undertake certain actions, the director(s) and/or officer(s) must adopt a resolution. So, for example, if the corporation is going to enter into a significant contract, the director(s) will have to authorize the president to execute that contract. These formalities are required even if only one person is involved in the corporation.

Moving on, there are external filings as well as internal actions.

New York corporations have to file annual franchise tax reports and pay franchise taxes even if the corporation doesn’t do business or loses money that year.

A corporation has to file a biennial statement.

A corporation has to file a federal and state corporate tax return. The corporation files a corporate tax return on Form 1120S, then each shareholder's share of the profit or loss of the corporation is recorded on a Schedule K-1, then the K-1 information for each shareholder is reported on Line 17 of the shareholder's Form 1040. This applies even to a corporation with just one shareholder. Of course, the state has a similar set up. So, are you willing to file a subchapter S federal and state tax return as well as a federal and state individual tax return every year?

Keep in mind that the primary reason for incorporation (i.e. protection from personal liability) requires that a corporation comply with all legal requirements in order to have this shield of protection.

Lastly, an author who incorporates might think they’ve shielded their true identity from their readers. But consider this scenario: Romance Reader happens to notice Riante, Inc. (a company formed by an author) in the copyright notice in a novel, and curious about the author, does a quick on-line search. To see what Romance Reader can discover in about a minute, click on http://www.sos.arkansas.gov/corps/search_all.php, type Riante, Inc. into the name box, and once the next pages opens, click on Riante, Inc. Sorry I can't give you a direct link, but as the Arkansas Secretary of State adds corporations, the links change.

By the way, I see that Riante, Inc. has no fictitious name filings in its state. So Riante, Inc. may use only its legal name in connection with all matters.

And just by typing the words “in its state,” I’ve thought of yet something else. If a corporation does business in any state other than its state of incorporation (and the definition of “doing business” is often loosely construed), it must file an application for a certificate of authority to do business as a foreign corporation in those other states.

And what if you don't want to have the corporation any longer? Well, you have to dissolve it in accordance with the requirements of the law. Yes, think of the effort and cost of a funeral and burial.

2. Limited Liability Company (LLC)

To form an LLC in New York, there's a publication requirement (i.e. the notice of formation) in addition to a filing requirement, which can add substantially to the cost of formation. In New York, the county clerk(s) must designate the two newspapers in which the notice must run. If she/he/they choose a larger newspaper, an author could be looking at several hundred dollars and up just to fulfill the notice requirement.

After the filing of the formation papers, the LLC must adopt an operating agreement (just to give you an idea, the operating agreement for most of my clients has ranged 35 to 40 pages), apply for a TIN (taxpayer ID number), open a bank account, order checks, issue member certificates, etc. It isn’t unlike the initial work for a corporation.

Unlike the corporation, the LLC is a little looser in terms of internal operation.

As with a corporation, though, there are external filings. For tax purposes, a single member LLC (SMLLC) can be treated as either a corporation or a single member “disregarded entity.” To be treated under federal law as a corporation, the SMLLC has to file Form 8832 and elect to be classified as a corporation. An SMLLC that does not elect to be a corporation will be classified by the existing federal guidance as a “disregarded entity” which is taxed as a sole proprietor for income tax purposes. If the LLC is a sole proprietor for federal tax purposes, the entity will most likely have to file Form 1040 Schedule C, Profit or Loss from Business (Sole Proprietorship). If the business has net income over $400, it may be required to file Schedule SE, Self-Employment Tax.

Contrary to what someone said, the LLC doesn’t afford better protection from personal liability than a corporation. As with corporations, a LLC must follow all legal requirements to afford its member(s) protection from personal liability. By the way, in my experience, accountants tend to push their clients toward forming a LLC...and not necessarily because it's a better form of business entity.

As with a corporation, if you don't want to have an LLC any longer, you'll have to trudge down a similar path to the graveyard.

3. General Partnership

By law, a partnership requires two or more partners. Contrary to what someone said, it isn’t that a person “can’t easily form” a partnership with one person...but rather that a person can’t form a partnership at all without a second person. Based on my experience, the use of partnerships started to fall out of favor in the late 1980s. Today, investors prefer a corporation or LLC. Doctors often use a PC (a professional services corporation) or a PLLC (a professional services limited liability company). Lawyers are about the only ones who still use the partnership model, but even so, they now form LLPs (limited liability partnerships).

4. Limited Liability Partnership (LLP)

Someone asked me to cover the LLP as a possible entity for authors.

First, two or more persons must form a partnership under state partnership law.

Second, in some states, only certain partnerships may register to become limited liability partnerships. For example, in New York, LLPs can be formed only by law, accounting, engineering, and architectural firms. In fact, under the law, each of the partners of the partnership must be a professional authorized by law to render the professional service, such as a lawyer licensed to practice by the New York State Bar.

So now you know why I didn’t cover LLPs in my first post.

However, for those still interested, I’ll give a little more basic information.

Again, I'll skewer this toward New York, but other states (those that have enacted LLP statutes) may have a similar set-up.

In New York, the formation of an LLP is accomplished by the filing of a certificate of registration with the Division of Corporations. As with the LLC, there is a publication requirement, which can add to the costs of the creation of this type of business entity. Upon completion of the publication requirement, the LLP must file affidavits of publication with the Division of Corporations.

In addition, an LLP must make additional periodic filings with the Division of Corporations. For example, an LLP must file an LLP Statement within sixty days prior to the fifth anniversary of the effective date of their registration or notice of registration, and every five years thereafter as required by New York Partnership Law.

As to tax filings, just as with a corporation and LLC, an LLP has to file an annual federal and state tax return. The LLP files a partnership tax return on Form 1065, then each partner’s share of the profit or loss of the partnership is recorded on a Schedule K-1, then the K-1 information for each partner is reported on the partner’s individual Form 1040. The state has a similar set-up.

Of course, as with any business entity, an LLP may need to make other tax-related filings which depend on a host of factors.

So, why do partners of a law, accounting, engineering, or architectural firm in New York elect to register as a LLP?

In the old days, if one partner was sued for malpractice and the plaintiff got a judgment, the other partners were personally liable for the satisfaction of that judgment. But the partners of an LLP aren’t personally liable for the actions or omissions of their partners if they are sued. For example, if one partner has a malpractice lawsuit brought against him, the other partners won’t be personally liable for any judgment made against that partner. This is what makes the LLP so attractive to professionals.

Of course, all partners are responsible for the general obligations of the partnership, such as bills and expenses.

5. Overall

I can’t tell you how many times I’ve seen single member LLCs and single shareholder corporations run afoul of the legal requirements, probably because the single member/shareholder thought all she/he had to do was file a certificate of incorporation (corporation) or articles of organization (LLC). No, there's more to it than that...and more to it than an author might want or need.

So, if you comply with all legal requirements, what do you get for incorporation or formation? Yes, you get protection from personal liability (provided you comply with all requirements), but ask yourselves whether you're running the kind of business where the need for protection from personal liability outweighs the costs inherent in formation and operation (for this question, think company that puts products into play such as Gerber or Graco, or company that invites the public onto its premises such as a department store, or company that has employees, trucks, and planes in motion such as Federal Express). On the other hand, for an author who'll generate money from film merchandising, etc. (think J.K. Rowling), I could definitely see the benefit of forming a corporation or LLC.

D. DURATION OF COPYRIGHT TERM

Now, let’s move away from corporate and tax law and back over to copyright law. As a final thought, I’d like to point out that an author’s choice of name vis-à-vis legal or pseudonymous, and an author’s choice of business entity, can have an impact on the duration of the copyright. Here’s the actual law on duration:

"§ 302. Duration of copyright: Works created on or after January 1, 1978

(a) In General. — Copyright in a work created on or after January 1, 1978, subsists from its creation and, except as provided by the following subsections, endures for a term consisting of the life of the author and 70 years after the author's death.

(b) Joint Works. — In the case of a joint work prepared by two or more authors who did not work for hire, the copyright endures for a term consisting of the life of the last surviving author and 70 years after such last surviving author's death.

(c) Anonymous Works, Pseudonymous Works, and Works Made for Hire. — In the case of an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first. If, before the end of such term, the identity of one or more of the authors of an anonymous or pseudonymous work is revealed in the records of a registration made for that work under subsections (a) or (d) of section 408, or in the records provided by this subsection, the copyright in the work endures for the term specified by subsection (a) or (b), based on the life of the author or authors whose identity has been revealed. Any person having an interest in the copyright in an anonymous or pseudonymous work may at any time record, in records to be maintained by the Copyright Office for that purpose, a statement identifying one or more authors of the work; the statement shall also identify the person filing it, the nature of that person's interest, the source of the information recorded, and the particular work affected, and shall comply in form and content with requirements that the Register of Copyrights shall prescribe by regulation."

Let’s consider an example:

Annie Author was born in 1970, wrote the great American novel in 1999, had that novel published in 2000, and will die at the age of 85 in 2055.

If she took the copyright in her legal name, her estate will hold that copyright until 2125.

If she took the copyright in a pseudonymous name, her estate will hold that copyright until 2095, unless the author/estate reveals her identity before the end of the term, in which event the estate will hold the copyright until 2125.

If her corporation took the copyright, the corporation will hold the copyright until 2095. With these set of facts, the author has denied her/his heirs 30 years of potential royalties.

I think the point I'd like to make is that, if you're going to make a legal decision, you should consult with an attorney (one versed in intellectual property law for copyright issues, and one versed in business law for corporate and LLC matters, not Uncle Johnny who handles divorce cases or Aunt Millie who tries criminal cases).

***

Let me say that I think non-lawyers should be very careful with what they say about legal concepts because other non-lawyers might assume their words are an accurate statement of the law. I don’t mean to quiet discussion, which is always a positive thing. However, I think non-lawyers need to start or end their posts with a statement that they’re not lawyers and that others should seek legal advice (from a lawyer, of course). Some members of loops do that...but some don't.

Please note that, among other things, the law changes rapidly, differs from jurisdiction to jurisdiction, and is subject to the on-going interpretation of federal and state courts. More, legal advice must be tailored to the specific circumstances of each matter. So, nothing that you read in this post (or in any self-help book or on any on-line site) should be used as a substitute for the advice of legal counsel.

Happy Writing!

P.S. I've done a search of copyright applications for books filed with the U.S. Copyright Office during 2010 (I used 2010 instead of 2011 because it takes a few months for registrations to show up) by several publishers (ones that came to me off the top of my head). Here are the results:

Ellora's Cave 0
Grand Central 1,405
Harlequin 932
Liquid Silver Books 0
Little, Brown 1,340
Loose Id 0
Penguin 1,599
Samhain 0

Image © 2008 By User: Anonymous101 and authors of the images at http://commons.wikimedia.org/wiki/Image:Copyleft.svg http://commons.wikimedia.org/wiki/Image:Scale_of_justice_2.svg http://commons.wikimedia.org/wiki/Image:Red_copyright.svg [Public domain], via Wikimedia Commons

All Other Content © 2011 Madeline Smyth







23 comments:

  1. Madeline,
    I'm quite surprised that you received no comments on this topic. This is more clearly explained than anything else I've seen on this topic. As it happens, I just saw it for the first time today. I'm glad you posted it. Thanks for the "heads up"!
    ~Donna Goode

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  2. Very helpful. Thank you.

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  3. Great review of copyrights and corporate law.

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  4. Thank you! I'll add that my e-publisher has it in the contract that it's up to the author to file copyright if they so desire, so that might be the same with the others above that have 0 next to them

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    1. Yes, e-pubs tend to pass the copyright issues along to authors, most of whom don't understand the whys, whens, or hows of copyright.

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  5. Very very interesting stuff. I work with at least one e-pub where the copyright filing falls to the writer. I haven't bothered with really short works and probably won't unless they actually earn me some money first.

    Novels I'm more inclined to secure a copyright certificate for just because of the time expenditure. This bit is my take-away:

    "If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner."

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    1. Take away these other three as well:

      • Registration establishes a public record of the copyright claim.

      • Before an infringement suit may be filed in court, registration is necessary for works of U. S. origin.

      • If made before or within five years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.

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  6. I'm so happy to run across this information. Using your examples, I just corrected the copyright page on my new contract.

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    1. You've made me curious as to the original wording.

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  7. Madeline,
    Thanks for referring us back to your post on Copyright. It's sooo complicated that it's wonderful to have it all laid out here by someone who really knows about it.
    Suzi Love

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    1. It is complicated. In my post, I've only set out some very basic concepts of federal copyright law and New York corporate law. Given a particular situation, there would be much more to consider.

      Also, the publishing landscape has undergone, and is continuing to undergo, dramatic change. Some people believe that the current laws are inadequate to address copyright infringement. I can envision a new world in a digital-only age.

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  8. Madeline, thank you for writing this! It's just what I've been looking for. I may have questions after I digest this...

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    1. I'm always willing to help others in any way I can.

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  9. Madeline - Thanks for clearing up so many copyright issues without getting too technical. I was pleased to find out that copyright protection lasted even longer than I thought it did. Also, it was good to note that publishing houses don't always file for copyright protection. Writer beware.

    I filed for copyright on my first book before I even began to market it to agents. Yes, I was a paranoid beginner, but this copyright registration number & date were used upon publication a few years later, so my efforts weren't wasted.

    I think my filing for copyright so early may have afforded me some additional protection with regard to an unforeseen issue, but I'm not positive. That sounds cryptic, but here's what happened:

    While attending a small-press conference together, I allowed an author I had just met to read the ending of my draft (but copyrighted) novel. At the end of the conference, I opted not to publish with that small press, but the other author did, just a few months later. I was shocked to discover the advertising excerpt from her novella was, word for word, the entire last paragraph of my book! I decided the overall quality of the writing would will-out,so I didn't reveal what she had done, instead opting to use the incident as a lesson. I was comforted by the knowledge that my copyright date proceeded hers, so in the event she were ever to claim I was the one who had plagiarized her work, the truth would come to light. Is my assumption correct?

    Again, thanks so much for taking the time to provide such detailed information on such an important topic!

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    1. Whenever I hear that an author registered a work before marketing it to agents (nevertheless entering into a contract with a publisher), and so, may have made significant revisions during the editorial process, I question immediately whether that author has created a "derivative work" as that term is defined under copyright law. The U.S. Copyright Office has a circular on this topic at http://www.copyright.gov/circs/circ14.pdf and provides Form TX for the registration of a derivative work online at http://www.copyright.gov/forms/formtx.pdf

      Does the other author's novella include only a paragraph that is identical to the last paragraph of your work, or does it include more? The seminal question is whether the two works are substantially similar (this is required to demonstrate actionable infringement)? This is a question of fact for a jury, using various tests developed by courts, making subjective and objective assessments, and relying on lay and expert observations. It’s possible that neither of you have infringed the other’s copyrighted work.

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    2. Madeline - I did make edits to my novel after registering the work (mostly to reduce it from 140k words to around 107k) but no significant changes were made to the story or storyline concepts. Do you think I should file for a derivative or just be more informed going forward?

      As for the other author's novella, the part of my book that she copied was an intimate conversation between two main characters and a few tender gestures. The section of dialogue and gestures were too lengthy and identical to be coincidence, but I don't think the storyline concept of her novella was the same as my novel.

      Like I said, I wouldn't pursue infringement, as I simply considered it a lesson -- to be more careful about sharing unpublished materials with people I don't know very well. I seriously doubt the other author would attempt to claim the work as her own...it's not like her book went on to become a best-seller or anything.

      I just wanted to know if my previous copyright on the material (which was not changed at all from the point of copyright to print) was protected in the event she did try to claim I copied her work.

      Thanks again!

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    3. On the issue of derivative work, the U.S. Copyright Office says it best in layman’s language:

      “A derivative work is a work based on or derived from one or more already existing works. Also known as a ‘new version,’ a derivative work is copyrightable if it includes what copyright law calls an ‘original work of authorship.’ Any work in which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work of authorship is a derivative work or a new version.

      A typical derivative work registered in the Copyright Office is a primarily new work but incorporates some previously published material. The previously published material makes the work a derivative work under copyright law.

      To be copyrightable, a derivative work must differ sufficiently from the original to be regarded as a new work or must contain a substantial amount of new material. Making minor changes or additions of little substance to a preexisting work will not qualify a work as a new version for copyright purposes. The new material must be original and copyrightable in itself.”

      See http://www.copyright.gov/circs/circ14.pdf

      In your most recent comment, you wrote: “I did make edits to my novel after registering the work (mostly to reduce it from 140k words to around 107k) but no significant changes were made to the story or storyline concepts.” However, you then wrote: “I just wanted to know if my previous copyright on the material (which was not changed at all from the point of copyright to print) was protected in the event she did try to claim I copied her work.” So, I’d suggest you run a compare write (or if you don’t have Word 2010, but know someone who does, have him/her run a compare write for you), comparing your manuscript as registered to your manuscript as published.

      As to a copyright infringement claim, for the other author to make out a claim against you, she’d have to prove that she owns a valid copyright, you copied her work, and the level of your copying amounts to a misappropriation. Might she have held a valid copyright prior to you, even if you registered your work first in time? Might you have had access to her material at some point prior to the creation of your own work (for example, as a contest judge, blog reader, etc.)? Are your works substantially similar?

      In a prior comment, you said that "the advertising excerpt from her novella was, word for word, the entire last paragraph of my book." However, in your most recent comment, you said that she copied "an intimate conversation between two main characters and a few tender gestures." So, I’m not certain in what way the works are or aren’t similar. In any event, I don’t have enough facts to even begin to assess whether she could make out a copyright infringement claim against you. I can certainly appreciate your desire for a simple answer, but copyright infringement claims aren’t a simple matter.

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  10. Thanks for posting this, Madeline. One of my takeaways from this is that a pseudonym doesn't have to be a legal entity in order for the author to retain all copyright protections. Is that correct? So, for instance, I could put on my blog "Copyright 2012 Andrea Dalling" even though Andrea Dalling is a pseudonym, and I'd still retain all my rights as the author?

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    1. A pseudonym is a fictitious name most often used by an author in his/her individual capacity. An author doesn’t have to set up a legal entity, such as a corporation or limited liability company, in order to use a pseudonym. However, an author can form a legal entity that uses a fictitious name.

      When an author registers a work with the U.S. Copyright Office with a disclosure that X pen name is the pseudonym of Y legal name, the author has connected the fictitious name to the legal name in a public document. If an author has never connected a fictitious name to her legal name, and that author uses a pseudonym in a copyright notice on a blog or in the copyright notice of an unregistered work, it could raise questions about ownership.

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  11. Hi, there. I'm a bit late to the conversation (duh), but your post on this subject came up in my search results.

    I have a question re: copyright and using a pseudonym, specifically: what do you put on the copyright page if you're using a pseudonym?

    I'm self-publishing my book for the Kindle e-reader via Amazon. If, for example, my pseudonym is "Tony Mantra," I can't put "Copyright © 2014 by Tony Mantra" because "Tony Mantra" doesn't exist. But if I put "Copyright © 2014 by (My Real Name)," that defeats the purpose of using the pseudonym, doesn't it?

    So what do you do? (And yes, using a pseudonym is imperative in my case.)

    Any assistance re: this matter would be greatly appreciated.

    Best wishes.

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