What writers should know about pen names, copyrights and trademarks by Charlotte Hopkins
(This material may not be reproduced without the express written consent of the author.)
When learning the differences between trade marks and copyrights, there are a few distinguishing factors between them. If a writer chooses to register a pen name through the publisher, be sure to specifically note in a contract which one holds the rights to that name. Typically the publisher is given consent to use that pen name in connection with the work being published and in "other ways" when necessary. The specifics can be sorted out between author and publisher. The only exception to this is when the publisher has created the pen name; in which case the publisher will hold the bulk of the rights. The rights are discussed and sorted out between the writer and the publisher. A writer can NOT copyright a name but CAN trademark a name by applying for a pen name.
What is the difference between a copyright and a trademark?
Copyright protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, what it protects is the way these things are expressed. A trademark protects words, phrases, symbols, or designs identifying the author and distinguishing them from others writers, artists, etc. For example, if a writer's last name is Williams and if they include a calligraphy style “W” enclosed in a circle on all of their work, such as, next to the title; this symbol has become their trademark.
When it comes to your own "copyright" some writers have tried the "poor man's copyright." This is when you mail your writing to yourself but do not open it. When it goes into the mail it becomes a federal document. Later if you notice someone using material or if someone accuses you of stealing their work then you have your written material in a sealed envelope with the date stamped on the outside. The only person you let open the envelope is the judge, if it happens to get that far. In some countries "The Poor Man's Copyright" will hold up in court. In the United States it is no longer admissible in court because they believe that it is too easy to mail an "unsealed" envelope to yourself and seal it at a later time when you need it.
A writer trademarks a pen name to obtain the rights to the name for publishing purposes. If a writer has a specific pen name that they use on various writing projects then that name becomes a trademark and qualifies for trademark protection. If a writer seeks to register a pen name as a trademark and they have taken the pen name from a living individual, then either the consent of that individual must be obtained and filed or a disclaimer filed stating that the name is not the name of a particular living individual. Pen names also cannot be registered if they are the name of a deceased President of the United States during the life of the President's widow unless she has given consent. To trademark a pen name contact the U.S.
Patent and Trademark Office, 1-800-786-9199.
Though a writer can not copyright a name; a writer can copyright their work. As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. For 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 the author's identity is later revealed in the records of the Copyright Office, the copyright term becomes the author's life plus 70 years. When a writer copyrights their work under a pen name they do not have to include their real name on the application form, if they choose not too. In this case, when the author files under a pen name, be sure to put a check mark in the "Pseudonymous" box. This is important to remember. If a writer chooses to include their real name, then it will be made part of the online public records produced by the Copyright Office and will be accessible via the Internet. This information cannot be removed from public records. But the writer should also be aware that if a copyright is held under a fictitious name and the real name is omitted, it may later raise questions of ownership.
A writer's work is technically copyrighted the time that the writer puts "pen to paper." Copyrighting work is not necessary but it better protects the work in the case of plagiarism. Copyrighting is recommended for a number of reasons. Writers choose to register their work so that they have the facts of their copyright on public record and have a certificate of registration. Registered works are eligible for statutory damages and attorney's fees in successful litigation. If registration occurs within five years of publication, it is considered "prima facie" evidence in a court of law. This means that it has a stronger standing as belonging to that signed author.
Copyright forms can be obtained online at copyright.gov/forms any questions can be answered by their office, 202-707-3000. It is important to remember not to make copies of Form CO, which is available only on the Copyright Office website. Form CO is a fill-in form that creates and contains unique 2-D bar codes as it is filled in. The bar codes contain the information placed on the form, and they enable the Office to process the application faster and more efficiently.
To register a work, submit a completed application form, a nonrefundable filing fee, which is $35 if registered online or $45 if registered using a paper application. A copy or copies of the work to be registered also need to be sent in and they are nonreturnable. The writer will receive a certificate of registration within approximately 8 months of submission, sooner if the registration is done online. However, the effective date of registration is the day the Copyright Office receives the complete submission in acceptable form. If the writer wants to know the exact date the office receives their application packet then send the application by registered mail with a signature receipt requested. The writer does not need to wait for the certificate to proceed with publication.
A writer can preregister as an indication of an intent to register a piece once the work has been completed and/or published. This protects the work before completion, which is susceptible to access of other writers. Preregistration can be used for:
Motion pictures Sound recordings Musical compositions Literary works being prepared for publication in book form Computer programs (which may include video games) Advertising or marketing photographs
A few more facts.....
*A minor can apply for a copyright but can not negotiate in business dealings. *Music groups can trademark their name but not copyright it. *With recipes, just listing the ingredients is not protected under copyright law. It can only be copyrighted if the cooking steps accompany the list.
*TO QUOTE OR NOT TO QUOTE.....
If you want to quote someones writing in your story then you have to get their consent. But there are some exceptions. Any writing that has been published in the United States more than 75 years ago is generally in the public domain, as well as, any writing created by the US government. In those cases you don't need permission but you do have to site your source. If you are unsure about the legalities of using someone quote then check with the editor., They can tell you what to do. For example, you may not know "who" said it or how to contact them for consent.
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Charlotte Hopkins is a freelance writer from Pittsburgh, Pennsylvania. Her writing has been published in a variety of newspapers, magazines and websites. She was published in Chicken Soup for the Soul, Shadows & Light Anthology, and Authors for Haiti. She wrote feature pieces for Newscastic.com, highlighting life and times of Pittsburgh. Her first book, “Everything You Wanted to Know About the Heroes in Blue,” was originally released in January 2012. Her article, 5 More Minutes, was a tribute to lives lost on September 11th. In 2005, it was read in a military service for soldiers and their families. She released the first three books in her “365 Days” book series. They are titled: 365 Days of Writing Fiction 365 Days of Writing Nonfiction 365 Days of Family Fun Along with her writing, Charlotte was a Preschool Teacher and Activity Coordinator for more than 10 years. The work she is most proud of is being a mother of two up-and-coming authors.