The Birth of the Authornym: Authorship, Pseudonymity, and Trademark Law
74 Pages Posted: 25 Aug 2004
Consumers in the marketplace of ideas are well acquainted with one aspect of the Foucauldian concept of the author function: the way in which an author's name serves to organize both producer inputs - the various works the author wishes to have associated with his name - and consumer inputs -the readers' interpretive reactions to any particular body of work. Indeed, choosing to write under a pseudonym or under one's true name is the way in which an author exerts control over this function, by grouping certain works (for example, scholarly pieces) under one name and other works (for example, mystery novels) under a different authorial name, thus segregating readers' responses to each of these bodies of work. Readers, in turn, respond to this decision by mirroring the choices made by the author - continuing, for example, to refer to certain works as being authored by Mark Twain even when the author's true name of Samuel Clemens is known, or accepting that the Nancy Drew series was written by Carolyn Keene rather than by a series of different writers over time.
Borrowing from postmodern literary theorists Roland Barthes and Michel Foucault, and given that statements of authorship often tell readers very little, if anything, about the identity of the individual who put pen to paper, this Article proposes a separation of statements of authorship - what this Article terms authornyms - from facts of authorship. This construct leads to the conclusion that all authornyms are essentially branding choices, even if the brand that is chosen is the author's true name, and therefore that the author function is really a trademark function. If this is the case, then - as in trademark law - we should seek to preserve the organizational system of the authornym function and to minimize the likelihood of reader confusion that occurs when a work is used unlawfully without attribution - in other words, when an author's choice of authornym is not preserved.
The Supreme Court's 1995 decision in McIntyre v. Ohio Elections Commission, which granted First Amendment protection to pseudonymous speech, was an inherent acknowledgment of the trademark value that authornyms serve and the importance of controlling the author function by the choice of authornym. But in its decision in Dastar Corporation v. Twentieth Century Fox Film Corporation eight years later, the Supreme Court largely denied authors the ability to compel attribution of their works (thus preserving their authornymic choice) through the Lanham Act, and thus denied readers the accurate attribution required for organized and efficient literary interpretation. This Article contends that only by recognizing the essentially pseudonymity of all statements of authorship - in other words, by decoupling the copyright-focused concept of authorship from the trademark-focused statement of authorship (authornyms) - can we create room for the values that trademark law can promote in the marketplace of ideas.
Keywords: copyright, trademark, pseudonymity, authorship, Dastar, attribution, passing off
JEL Classification: K00, K40, K49, L82
Suggested Citation: Suggested Citation