Member Discussions

I have an interest in developing free software for the mudding community. I would be releasing all software under a brandname (trademark).

For issues of copyright and licensing, I would also like to use a ficticious name (same as the trademark), because a) I like the brandname better than my real name and b) at some future point I may want to include others in my efforts.

What are my options for doing so? I'd rather not have to spend any more money than neccassary to release free software, but I'd like the comfort of copyrights and trademarks being owned by an entity I currently control rather than by myself.

I should also mention that at some point down the road, I would like the option of accepting donations, although this isn't overly important to me.

Creating a fictitious name does not create an entity just another name that refers to one, which in this case be you. If you mean by comfort some measure of limited liability or protection under the law then you need to create such just such an entity be it an LLC, trust, corporation, or some other.

Not so much legal protection as convienence.

For instance, if my copyright notices/ license agreements all use the name Blah Software, that ficticious name refers to me, but if I want it to now refer to me and my buddy who has started helping me develop, I don't need to change any of the above, it's just now Blah Software refers to me and my buddy instead of just me.

But what are the legal requirements for that? If I use Copyright 2003 Blah Software or create a license that grants rights from Blah Software, how do I make that as legally binding as using Kristopher R. Craw? How do I legally declare that Blah Software is me, or later on declare that Blah Software is me and someone else jointly?

Thanks for the advice and info

It varies from state to state. In general you file a registration that declares that you are operating under the fictitious name Blah Software, or your partnership Bob and Joe are using that name, or your corporation Joe inc. is using that name. You can't use it as a mechanism to transfer copyrights around automatically. If you want to form a partnership with Bob and transfer your copyrights to that partnership then you have to execute a contract to do so. And the legal implications of this may be that you no longer have control of your copyrights depending on the structure of the partnership. I'd consult a lawyer before entering into any partnership agreement. :-P



(Comment added by Tyche on Sat Dec 6 16:29:16 2003)

Think of partnerships as a sort of marriage. It's just you and Bob, well you, Bob, and all of Bob's future wives. :-P

My advice: do nothing.

The government has naming regulations for individuals doing business under a fictitious name, but if you're not doing business, you're not subject to any such regulations. Creation and distribution of software is not necessarily a business activity if you're not taking payment for it. The Internet is full of individuals using non-legalized fictitious names, and such behavior is ordinary, usual, and legal. (Heck, does any of us primarily use our real name online?)

Do make sure you don't violate someone else's trademarks, though. Don't put the word "Windows" in your software title, for instance.

Down the road, should you begin business activities, it is a simple matter to officialize your business name. To the best of my knowledge, all states have enacted a fairly standardized and streamlined process for an individual to declare a DBA ("doing business as") fictitious business name. A DBA doesn't offer any legal protections you don't already enjoy as an individual, though-- it's just a minor hurdle and added expense to keep the state consumer boards and tax collectors happy.

(Comment added by Rigel_Kent on Fri Dec 19 16:23:39 2003)

To be more concise, as far as copyright stuff goes, you get as much protection as an individual as any sort of business would. You do not need to legally declare Blah Software is you; should the matter go to courts, you have more than enough evidence on your computer to successfully defend any suit against you, and probably win yourself a tidy counterclaim.

If your intention is to organize a separate business entity from yourself, keep in mind that business entities legally differ from individuals conducting business in sole proprietorship in only two possible ways: A) liability, and/or B) taxation. If you're not in danger of personal loss from being sued or taxed, you gain no benefit from organizing. The cost of organizing a corporation or any of the four L's (LP, LLC, LLP, LLLP) is considerable, thus I advise against it.

You may consider a general partnership instead. It is informal, like a sole proprietorship, and works much the same way. Nothing needs to be filed; a business run by more than one person is a general partnership by default, just like a business with one owner is a sole proprietorship by default. Only one big difference: a general partnership may elect to be a separate entity for tax purposes, or income may be treated as personal income for the partners.

The cost of organizing a corporation or any of the four L's (LP, LLC, LLP, LLLP) is considerable, thus I advise against it.

In the State of Ohio, it cost me $75 and about 20 minutes to fill out a dozen blanks on a one page form to start a corporation. There are recurring monetary costs though. Every year I have to pay $34 to the State to meet the State required minimum unemployment insurance cost. Other than that the rest is time to fill out the rather complex tax forms every year which ruins one weekend out of every year for me. I wouldn't say the cost is considerable. However, most people hire lawyers and tax accountants to do all this thus the cost is considerable for them.

DBA forms can be filled out at the county level. Here it costs $20 or did. They are only necessary if your corporation does business under a fictitious name as well, and you'd like to open bank accounts in that name.

I wouldn't recommend this for just anyone, but I'm a DIY kind of person myself. YMMV.

One downside of forming an artificial entity like a corporation that may be related to the topic is that you cannot personally represent it legally. That is you MUST hire a lawyer to represent it in the court system. If you're running as a sole proprietor or partnership you can.