A member of my coaching program asked a question about the legality of using a pseudonym or alias when writing marketing communications.
In other words, can he use a pen name?
Stated differently, is it legal to write the copy in the voice of a fictitious character? Or telling the story of, say, a fictitious character enjoying the benefits of whatever you're selling? The short answer is, it depends.
Using an alias or fictitious characters in business is a common practice. However, if you're considering using one, there are a few things you need to know to avoid getting in hot water.
I'm not a lawyer so this is not legal advice. But with my years of research and experience in writing copy, I know enough to say this…
Using an alias or pseudonym is generally fine, as long as within the intrinsic nature of the alias there's no false or misleading information, mentioned or implied, meant to induce the consumer to buy based on that information.
If the alias is used to misrepresent the facts, or indirectly does so by its mere existence, you're breaking the law.
It's like the difference between making a promise versus making a claim.
If your story implies what your clients will get, then you're making a promise. And a promise made by a fictitious character is fine since the character represents the business making it. As long as you deliver on your promises.
(And keeping promises is a different legal ball of wax.)
But if it states what your past clients have done (results they have achieved by using your product or service), then it's a claim. Because the fictitious character represents an implied testimonial, or presents information as fact.
Therein lies the difference.
So ask yourself, does your alias make a promise? Or a claim? If the latter, is the alias a part of that claim? In other words, is the claim fake, too?
Here are two examples to clarify.
1. Alias as Narrator
Your marketing material tells a fictitious or dramatized story of a person who benefits from your product or service.
The story shows your prospects what they should do, and what kind of results they should expect, by watching the story play out. The teller of the story, or the person in the story, is completely fictitious.
This is fine as long as what is promised is true, and you deliver on your promises.
For example, remember this commercial? John Doe gets into a car accident. He picks up the phone and says, “Uh oh, better get Maaco!” The screen fades to a scene in the future with John and his repaired car in the background, shaking hands with a Maaco mechanic and a huge smile across his face.
How many times have you seen commercials like that?
Now, here's the exception…
The fine line is when the story doesn't imply what one should do to benefit from your product or service, but what one has actually achieved, which represents or implies what the person will get based on what was represented as fact.
In other words, it's no longer a promise.
It's a claim.
Stated differently, when the advertisement states or even just implies that John is an actual client, a real person who got that exact service, in that exact way, with those exact results, you are misleading the public.
The story implies people will get the same. Specifically, it is no longer a story but a testimonial. And testimonials, by law, must be true.
The subsequent sale, should any occur, is therefore acquired fraudulently, because people believe that John is a true client and offering a real testimonial for Maaco. The story is presented as fact when it is not true.
And that's illegal.
Remember the story of the Wal-Mart couple who drove their trailer across the United-States, going from Wal-Mart to Wal-Mart, camping out in Wal-Mart parking lots, and blogging about their (seemingly only) positive experiences?
The backlash was massive. And merciless.
Legality aside, it became a PR nightmare. Some argue that the stunt would have been safe — and even that's arguable, too — if the blog had a proper disclosure informing readers that the characters were fake.
(In fact, the massive backlash inspired the popularity of the terms “flog” and “flogging,” which means “fake blogging.”)
2. Alias as Provider
If you call yourself a pen name to tell or narrate the story in your copy, and this pen name doesn't mislead, you're OK — as long as it is clear that people are not buying from your fictitious character but from the business it represents.
They are buying from a real business with a real business name. For example, you don't buy burgers from Ronald McDonald himself, right? You buy it from McDonald's restaurants, the business Ronald represents.
Here's a scenario.
When a sales letter is signed by “Mr. X,” and if Mr. X is telling the story in the role of a narrator (not a business entity), then you're fine. In this case, Mr. X is telling the story, and the promise is made on behalf of the commercial entity you're doing business with.
The fine line, in this case, is when you state that Mr. X is a real person, and that person makes claims or presents information as fact on behalf of the commercial entity, such as past experiences, clients, or results.
Generally, this is OK too, as long as the facts are true, and the alias is not the provider with whom you're doing business.
But if you do this, you not only need to include real facts in your story (as always), but also be fully prepared to prove them when asked by either the public or government.
If the FTC ever comes knocking at your door, you better have proper documentation and real proof to back up your claims and save your anatomy!
What about a business name?
Having a business with a fictitious name is definitely legal, provided that you have filed the proper documentation (such as registering your business, incorporating, or filing a “doing business as” statement), and carried out the proper trademark searches.
This is a normal part of doing business, even vital for branding purposes.
The issue is not with the name but when the existence of the business, its actual clients, or any results achieved are works of fiction.
Ultimately, the question to ask is, does it tell a story to make a point? Or does it tell a story to mislead in an attempt to make a sale? Whether intentionally or not, the latter is fraud.
Using an alias is fine as long as you are not making claims as that alias and the alias is responsible for those claims.
You, using your real name or your real business name, can make claims until the sun goes down. You own them and you're on the hook for them. And people know who to turn to if the claims are false.
For example, an alias can state a guarantee if it's doing it on behalf of a company. But the alias is not the one making the guarantee directly, and the company is not trying to hide behind it.
Also, if you use an alias to tell a story, whether dramatized or written in a sales letter, you're generally safe. However, if you make claims under an assumed name, then it is illegal when the assumed name is presented as fact.
Of course, before you ultimately decide to use an alias, particularly if you're concerned about whether or not you're crossing a line, consult with an attorney.
I'm not a lawyer and the above should not be construed as legal advice. Plus, this article should be viewed only as a partial or general opinion and commentary, as every individual case is unique.
It is based on my years of experience, especially working with doctors and lawyers in my early career when I first established my company, originally called The Success Doctor, Inc., which used to focus strictly on doctors and service professionals.
Finally, props go out to my friend Mike Young, Esquire, an Internet marketing lawyer who reviewed my response. (Thanks, Mike!)