"Antidote's lawyer, Gregory Curtner, said Albert stepped over a line by signing contracts and obtaining* copyrights under the phony name."

* (see sidebar on copyright, below)

For me, that is the crucial issue in what I see as a many-shades-of-gray area. And even that point can be debated under the question of what constitutes fraud.

I had my last name legally changed in 1987, to something that was neither my maiden nor my former, married name, but that had come to me as my fantasy alter-ego's name when I was 10. It was my identity. I had signed no contracts and registered no copyrights under it, but I had used it as my name to pay utility bills because the utilities didn't care what name the money came from. I had also published under Malcohn when it was still my "pseudonym," which it had to be until my divorce was finalized. As soon as my divorce came through I petitioned the court to have my name legally changed to Malcohn.

At my hearing I had to prove that I was not changing my name for purposes of defrauding anyone. On the contrary, my divorce settlement included protection of my intellectual property, including works I'd published as Malcohn. The checks paid for those stories had been written to my then-married, still-legal name.

After my father died in 2002 I had to supply my name change documentation, again to prove I wasn't trying to defraud anyone.

I vaguely remember a passage in Anais Nin's diaries, where she writes about keeping a fictional diary under a false name. I forget what name she gave, or whether she used the pseudonym to deceive as Albert had.

Then you have "memoirs" like Axel Munthe's The Story of San Michele (Dutton, 1929), which I recommend whole-heartedly. That work has been called memoir, autobiographical fiction, and genre-defying. Munthe wrote about establishing a cholera hospital but he wove extraordinary, fanciful elements into his story.

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* Unless Westfeldt is misquoting, the word "obtaining" is a strange one for a lawyer to use in this context. According to the U.S. Copyright Office in its Copyright Office Basics circular at

www.copyright.gov/circs/circ1.html

"Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright."

Furthermore, the USCO says, in its page on registering unpublished material, at

www.copyright.gov/register/...ished.html

"There is no specific requirement as to the printing, binding, format, or paper size and quality of unpublished manuscript material. Typewritten, photocopied, and legibly handwritten manuscripts, preferably in ink, are all acceptable for deposit."

Furthermore, the U.S. Copyright Office makes allowances for pseudonymous work, even those registered without the author's legal name -- see

www.copyright.gov/fls/fl101.html

The USCO does point out, however, "In no case should space 4 (name of copyright claimant) be left blank. You may use a pseudonym in completing the claimant space, but you should also be aware that if a copyright is held under a fictitious name, business dealings involving that property may raise questions of ownership of the copyright property. You should consult an attorney for legal advice on these matters."

What I conclude from this is that Albert could have scribbled LeRoy's "memoirs" in legible fuschia crayon (ink is "preferred" but not mandatory) on a packageful of restaurant napkins and mailed those in to the USCO using Short Form TX, complete with pseudonym alone and the $45 registration fee, and obtained copyright registration with legal impunity. If anything, doing so would have presented more of a risk to Albert, not necessarily to the people who claimed she had defrauded them.

I daresay she would also have been at risk from some ornery USCO employees. ("However, the Copyright Office would appreciate receiving material in a format (e.g., stapled, bound, clipped, etc.) that would facilitate handling and longterm storage.")

So for me, the question really comes down to damages. And if Shainberg parlays this legal battle into a "new project," does that then become an exploitation of Albert?