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Suppose I have written a literary work (an article, some source code, etc.) and published that work under a pseudonym. Suppose also someone else is infringing upon my copyrights and I want to sue them because they are not responding to more friendly requests to come in compliance with the license.

The question is, in what ways can I prove to the courts that I am in fact the copyright holder (i.e. I have a better than 50/50 chance that the court holds that I am the same person as referred to by the pseudonym mentioned in the copyright line).

In case it matters, I have not bothered to register my copyrights with any copyright office and I am interested in jurisdictions that follow the Berne Convention.

Bart van Ingen Schenau
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  • Does this answer your question? Legal Name and/or Pseudonym and Record Keeping – BlueDogRanch Nov 29 '22 at 14:54
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    @BlueDogRanch, that question mentions that proving an unregistered pseudonym might be tricky, but neither the question nor the answer gives any indication how to overcome that tricky part. – Bart van Ingen Schenau Nov 29 '22 at 14:59
  • "...in what ways can I prove to the courts that I am in fact the copyright holder." A court will make a judgement on the facts as it sees them, not how you see them; and, of course, that judgement might not be the judgement you want. – BlueDogRanch Nov 29 '22 at 15:13
  • @BlueDogRanch, I understand that you can't force a judge to see it your way, but there must be something you can present them that is better than just the statement "that is me". – Bart van Ingen Schenau Nov 29 '22 at 15:25
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    Is the question based on compiling evidence after the fact, or do you have the luxury of planning ahead? – JBentley Nov 29 '22 at 15:35
  • What you present is evidence (physical or sworn statements) and argue with that; and if the best evidence you have is "that is me," that's the evidence you present. – BlueDogRanch Nov 29 '22 at 15:43
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    How did you publish the original? If by posting to some web2.0 service, maybe you can show that you're in possession of the relevant login credentials; if through a print publisher, maybe someone at the publishing house knows who they corresponded with in arranging publication. – Daniel Hatton Nov 29 '22 at 17:45
  • Additionally, you can just start with a plain statement of the facts in the complaint and start worrying about methods of proof once the thief actually challenges those statements. "The work was originally published on Site under the pseudonym Name." "Plaintiff has at all relevant times controlled the pseudonym Name on Site." – Riking Nov 29 '22 at 23:19
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    Just register your pseudonym as a trademark. This is no different than Steve Wozniak selling motherboards under the name "Apple" instead of "Wozniak". – slebetman Nov 30 '22 at 07:40
  • Or better yet, register a pass-through LLC with the name of your pseudonym. Therefore your pseudonym will have its own legal "personhood" and can itself own copyrights and trademarks but is 100% owned by you. – slebetman Nov 30 '22 at 07:43
  • @slebetman To register a trademark in the US, one must show actual past use in trade, or declare an intention of near-future use. One must do a search for uses by others, and include the results in the application. Fees are significantly higher than for a copyright registration. It is usually essential to hare a trademark lawyer. And if there is a later period of five years or more without continuing use in trade, the mark will expire. As for an LLC, that does not prevent the use of the name by another, nor prove that past use was by the LLC owner. – David Siegel Nov 30 '22 at 14:22
  • @DavidSiegel Presumably intending to sell a literary work under the "brand" of the trademark should be enough for trademark registration. You don't need to intend to sell multiple products for the trademark to be valid. Heck, trademarks don't even have to be a brand that applies to multiple products. Trademarks can be for the name of a single product. Obviously it can't clash with another author's name or pseudonym but you can still trademark a pseudonym if it clashes with something that is not the "brand" of a book. – slebetman Nov 30 '22 at 15:54
  • @slebetman A similar mark in a different category is not a bar to a TM registration, but still must be reported in the application. True, a mark can be used on only a single product if the owner wishes. But htedr is still a good deal of overhead for a TM compared to a copyright. – David Siegel Nov 30 '22 at 21:12

2 Answers2

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If the suit is to be filed in the US, the first step is to officially register the copyright. No US copyright infringement suit can be brought until the copyright has been registered. The registration process includes a formal declaration as to who the author is (or authors are). (I believe this statement is made under penalty of perjury.) Once the registration issues, the certificate of registration is admissible evidence of the facts stated in it in a us court. Indeed 17 USC 410 (c) provides that:

(c) In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate. The evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court.

In other countries, the testimony of the plaintiff in a copyright infringement suit is itself evidence that the work was created as stated.

In either case, it is possible for the defendant to challenge the assertion and claim that s/he is the actual author. Showing when and where the work was first published can usefully corroborate the plaintiff's testimony. Having included a copyright notice in the initial publication may be of value, but if the notice only lists the pen name, it is not of much value. Records of the platform on which a work has been published may help in verifying the identity of the author. So may the testimony of others who saw or read the work, or who were told about it by the author. An author's own copies may be of value, if they carry a timestamp, as computer files generally do. But computer timestamps are not usually secure. Timestamps on email generally are reasonably secure, and could establish that the content existed and had been transmitted on a specified date by a specified person.

But none of this will matter unless the defendant claims that the plaintiff is lying in claiming authorship. Unless that happens, the plaintiff's testimony will usually settle the matter.

A person whose work seems to have been infringed would usually be wise to consult a lawyer with experience in copyright suits. Such a lawyer could advise if it is wise to bring suit at all, and if it is, what evidence will probably be needed.

David Siegel
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  • "if the notice only lists the pen name, it is not of much value." - Why is it not of value? Authors publishing under pen names is common practice in fiction. – Brandin Dec 01 '22 at 09:35
  • @Brandin It is still of vlue in showing that a copyright has been asserted. But it is not of much value in showing who is the natural person behind the pen name. Other evidence will be needed for that. And that was the context of my statement. Many authors do publish under pen names. But either the names are already generally known (example J.D. Robb) or they take other measures to document them, or in some cases they do not wish toi establish who is behind the pen name. – David Siegel Dec 01 '22 at 15:21
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Let's say I violate your copyright by copying the above question and reposting it on Quora.

What could you do?

The first step would be to figure out where the work was published first. In today's digital world, that's usually easy. The timestamps assigned by Stack Exchange and Quora would be proof enough which one is the original and which one is the copy. If the publicly visible timestamps are too imprecise (they only mention the same date, not the time), then the court could use 3rd party subpoenas to obligate both Stack Exchange, Inc and Quora, Inc to provide the timestamps as precisely as possible. The court could ask admins from Stack Exchange and Quora to testify that nobody tampered with their systems and retroactively changed the timestamps, but I doubt that any court would insist on that.

The next step would be to prove that you are indeed the person behind the Law Stack Exchange account #27861. That should also be simple. You could simply show to the court that you know the valid password for that account while I would be unable to do that.

My counter-strategy could be to claim that I did not steal the work from you, I stole it from someone else (alleging that you did the same). So even though I admit that I did something wrong, you are not the one who can sue me for that. But then the burden of proof to show where I got that question from would be on me. When I can't point to an even earlier publication of above question, then my legal argument would probably not convince the court.

phoog
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Philipp
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    This assumes that the plaintiff needs to present evidence beyond sworn testimony that s/he is in fact the author. This is not normally needed in copyright suits. Moreover, a defendant who claims that the plaintiff is not the copyright holder need not admit to unlawfully taking the work, such a defendant can simply challenge the assertion of copyright by showing that some third person is the actual author. – David Siegel Nov 29 '22 at 17:52