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I am developing a web site for ebooks and ebook authors and have a question about my legal liability in regard to allowing images to be associated with pen names or pseudonyms.

The publishing industry has a long history of permitting pseudonyms for a variety of purposes. Technically (as I understand it), using the name "Matt Smith" when your full legal name is "Matthew Clay Smith" is using a pseudonym, though it is one that isn't intended to obfuscate the legal identity of the author.

On the other hand, writing romance novels as "Matt Smith" may not be as marketable as writing them under the pseudonym "Alicia Caring."

Given the following examples (which in no way exhaust the possibilities), am I as the website creator or the company I form to encompass it legally liable for misrepresentation and can that liability be disclaimed with appropriate Terms & Conditions boiler plate?

  • Natural derivative of my legal name with photo of myself.
  • Intentionally obfuscating pseudonym with photo of myself.
  • Intentionally obfuscating pseudonym with stock photo of someone else.

Please note that there are no (or it's highly unlikely) ad hominem commercial claims. Merely the adoption of an alias. And as such I might be making much ado about nothing.

In the publishing industry, the purpose of an obfuscating pseudonym is to make it difficult or impossible to track down the real person (the publisher acting as the real person's agent). Pen names are rarely registered in the sense of a trademark.

Usually, the use of a pseudonym is to either make it easier for the author to write to his/her market (most female writers of the 1800s wrote used men's names) or to divest themselves of ownership (Louis L'Amour famously denied to his dying day being the Tex Burns who wrote the Hopalong Cassidy novels).

I am wondering if I can be hurt by someone building up a false personality around their real picture, or building up a false personality around someone else's picture, when it comes to me presenting books to the world.

  • Context matters (as always). Are ad hominem commercial claims being made that would be misleading with the pseudonym? Is the pseudonym and/or photo known to be possibly a pseudonym or a potentially inaccurate photo (e.g. no one expects an avatar at stack exchange to be an accurate representation)? Usually trade names are registered somewhere so that someone can somehow track down the real person. – ohwilleke Jul 28 '17 at 21:59
  • @ohwilleke, my explanation was too long for a comment, so I added it to the end of my original post. Thanks for considering this! – JBH Jul 28 '17 at 22:39
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I am not a lawyer; I am especially not your lawyer; this is not legal advice; if you want legal advice, hire a lawyer.

There are a few ways such a site might run into problems.

Misrepresentation

As Dale M. said, this is a nonissue. Misrepresentation, by itself, is not illegal.

Publicity rights

If a user of the site in question used another person's name or likeness, for instance, without permission, that might violate the other person's right of publicity. Per WEX,

The right of publicity prevents the unauthorized commercial use of an individual's name, likeness, or other recognizable aspects of one's persona. It gives an individual the exclusive right to license the use of their identity for commercial promotion.

https://www.law.cornell.edu/wex/publicity

This pretty clearly precludes the user of such a site from, for instance, selling books under someone else's name, image, or both. Thus should a user, for instance, use a picture of someone they found on Google images (as users do because users are terrible), they could be breaking the law. However, the publisher of the website might be shielded from many claims by section 230 of the Communications Decency Act (CDA; basic rundown at https://en.wikipedia.org/wiki/Section_230_of_the_Communications_Decency_Act), which states:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider...

No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.

(47 U.S. Code § 230(c)(1)-(e)(3) accessed from https://www.law.cornell.edu/uscode/text/47/230)

Which has generally been construed broadly to apply to many websites accepting user-submitted content and, as publicity rights are regulated at the state level, would seem to offer protection for the publisher of a website.

There is a small problem, though. The CDA excepts intellectual property claims:

Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.

(47 U.S. Code § 230(e)(2))

So, does the CDA apply to publicity rights claims? Maybe. For instance, in Perfect 10, Inc. v. CCBill LLC (https://scholar.google.com/scholar_case?case=4735249074019268133) a court held that CDA immunity does extend to matters of state law like publicity rights, even when those state laws look a whole lot like they pertain to IP. On the other hand, in Doe v. Friendfinder Network (https://scholar.google.com/scholar_case?case=10071982956109493404), a district court held, citing Universal Comm'n Sys., Inc. v. Lycos, Inc., that the CDA didn't extend to state laws when those laws are grounded in IP. The bottom line is that circuits differ on whether the right of publicity falls under the CDA.

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None

Misrepresentation is not illegal unless it is towards an illegal end.

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