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'07 Authors Insider Tips

FictionCraft
by Louisa Burton
Formatting Your Manuscript
Scams / Choosing an Agent
Pitching Your Novel...
From The Call to Published...


Hard Business
From Greg Herren
Who Is Telling This Story?
It’s Work, Not A Hobby
Where Ideas Come From


Sexy on the Page
With Shanna Germain
Plotting Erotic Fiction
Seducing Your Muse
Creating Characters...
Description, Action & Dialogue
Fucking on Paper
Ten No-Nos of Erotic Fiction
Climactic Moments: First Draft
Critique Groups
Revising Your Erotic Story
Finding the Perfect Markets...
Just Submit Already
Rejections and Acceptances


Two Girls Kissing
With Amie M. Evans
Verb Tense Confusion
Coming Up with Story Ideas
Attend a Writers’ Conference
The Fundamentals of POV
Should I Sign That?
Etiquette for Authors
Erotica is Serious Work
No Body Writes for Free...
Shameless Self Promotions
The Myth of Writer's Block


The Write Stuff
From Ashley Lister
The Time is Write
The Beautiful People
A Book by Any Other...
Synopsis: the Necessary Evil
Erotica or Porn?
Feedback Whine


2007 Smutters Lounge

Ashley Lister Submits
by Ashley Lister
What's it like being a writer?
Blog
An Apology to Salespeople


Get All Worked Up
With J.T. Benjamin
About Secrets
The Perfect Fuck
About Choices
The Age of Consent
The Kingmaker
Kids and Sex
M.Y.O.B.
The Price of Beauty
The G.O.P.
All Worked Up About Hate
Real Men


Pondering Porn
With Ann Regentin
Good Sex: A Physics Lesson
Meet Frankenstein
Thoughts on the Orgasm Gap
The Very Bloody Marys
The Doomsday Erection
Online Threesome Porn

Two Girls Kissing: Writing Lesbian Literary Erotica
with Amie M. Evans



Can I Write That? Should I Sign That?:
Some Legal Issues and Erotica



There are two distinct sets of legal issues that erotica writers need to be familiar with when they are publishing their work. The first set, "Can I Write That?", deals with issues of content and the second set, "Should I Sign That?", deals with contract issues. For the record, I am not a lawyer, nor do I have any legal training. A lawyer should be contacted in all matters of law. The information in this article is only intended to familiarize the erotic writer with the basic issues that they will be confronted with as they publish their work and should not be used to resolve any legal questions. For this article only, "publishing" refers to both selling works to print (magazine, journals, anthologies, etc…) and web (online journals and sites like this one) venders as well as posting work on private or non-refereed web sites (any web site that allows anyone to post their work without a screening process).

Can I Write That?

In the US, with its current anti-sex and anti-gay climate (not that the US was a bastion of pro sex before the current administration), "Can I write that?" is a fair question for an erotic writer to ask. There are volumes too numerous to mention written on both freedom of speech and what is pornographic. Suffice it to say if there is one thing about law you should know, it is that law is almost never clear when it comes to erotica and porn.

The legal definitions use terms like "community standards" and "offensive to the average person’s sensibilities" which of course vary radically from L.A., N.Y., or Boston to say Minnesota, Idaho, or Texas. In response to the vague nature of the law, publishers have set up their own standards which vary, but are pretty uniform across the board. The following is a list of industry standards in regards to what can and cannot be published in erotica.

Minors are out of the erotic story. No one under the age of 18 can be depicted in your erotic stories engaged in or watching sexual acts. The law is very clear on this issue. They call it "kiddy porn" and you go to jail for it. The exception to this rule has traditionally been "first time" stories in which two minors have sex with each other. Memoirs in which the author has had sex as a minor or with a minor and novels that are not categorized as erotic (for example, Lolita), but contain sex have been given exceptions to this rule. My personal advice is that unless you are writing a memoir of your own first time experience, avoid minors and sex.

Humans having sex with animals is a no-no. No bestiality. You can, however, write about furries or humans dressing and behaving like animals such as pony or dog play. Some publishers are not interested in this type of erotica. However, there are specialty houses that are very interested in publishing it.

No nonconsensual sex. Consent is defined in The American Heritage Dictionary as:

To give assent, as to the proposal of another; agree. To be of the same mind or opinion. Acceptance or approval of what is planned or done by another; acquiescence. So, a nonconsensual sex act is one that does not involve the consent of all parties involved. An example of this is rape in all its forms. Memoirs in which the author has been raped and novels that are not categorized as erotic, but contain rape, have generally been given exceptions to this rule. Where this becomes problematic for erotic writers is when willful forced sex is being depicted. Normally, consent is established upfront in the text between characters. For a great example of "getting around" this rule, see Pat Califia’s "Surprise Party" in Macho Sluts. In general, most publishers are not interested in erotica depicting rape, but may be interested in willful forced sex stories.

The following is a list of topics that some erotica publishers will not publish, however, many will:

Degrading sexual acts. The American Heritage Dictionary defines degrade as: To reduce in grade, rank, or status; demote. To lower in dignity; dishonor or disgrace. To reduce in worth or value. Degrading sexual acts in erotica are normally defined as those acts which eroticize historical social power differences such as race, gender, and class. For the erotic writer who is working in an S/M/B/D genre, there is a fine, but, I believe, clear line regarding this issue with consent and mutual pleasure at its core.

Scat play. A slang term commonly used to refer to folks who get sexual pleasure from watching the excretion or excreting human feces. This act may involve eating, smearing, or playing with the excrement before and during other sex acts. There is an entire sub-culture interested in this form of sexual pleasure, but most mainstream publishers will not publish stories containing scat play.

Unsafe sexual acts. This can range from unprotected anal or vagina intercourse in stories set after the start of the AIDS epidemic to any sexual act deemed "risky" by the publisher because of either its illegal status (such as public sex) or because of its potentially dangerous physical affects on the participants (such as some S/M activities like restriction of air flow or branding). What constitutes an unsafe sex act in an erotic story varies from editor to editor and house to house. Check guidelines and previously published anthologies.

Drug and excessive alcohol use. Unless the drug or excessive alcohol use is critical to the plot, many publishers like to avoid casual drug use or alcohol abuse in erotica stories. I recommend just not including it unless it is critical to the story.

Hard Core S/M/ B/D acts. S/M by any other name is a romance novel. By that I mean: mild bondage and sensation play can be found in many of the romance novels for sale in the grocery store, but once a writer starts to use the actual equipment (instead of a scarf or pantyhose and a feather or ice cube), some publishers get nervous. There is a market for all levels of intensity in S/M/B/D world. If you are writing erotica with elements that are considered more hard core such as branding, cutting, flogging, or deep psychological play, take the time to do the research on what the publishers have published in the past before sending them your work.

Should I Sign That?

I cannot stress how incredibly important it is to have a lawyer look at and explain to you in detail a book contract before you sign it. The Authors’ Guild members receive a free contract review from the Guild’s Legal Services and there are tons of lawyers who specialize in contract law around the country. However, for short story contracts, the cost of engaging a lawyer for each story you sell would far exceed the money you will earn writing short erotica. The following is basic information about contracts and what to look for in your short story contract before you sign it.

Keep in mind that if you don’t understand something in the contract, you should ask to have it explained to you. You should also do some online research to verify what you have been told is true. Unlike book contracts, most short story contracts are boiler plate (the same exact contract is used for every author who publishes with that house) and are normally easy to understand. Likewise, for the most part publishers aren’t trying to take advantage of you; instead they are just very good at looking out for themselves.

The entire time I’ve been selling short stories, I’ve only had to change one contract. I am lucky enough to have a friend who is a lawyer who reads my contracts for me for free. That said, please read your contracts and make sure you understand them before signing them.

What is a contract?

When you sell a short story to a magazine, website, or anthology, you will be required to sign a contract. A contract is a legally binding, written agreement between you, the author, and the publisher which outlines the rights and responsibilities of both parties.

Contracts are often written to the publisher's advantage, not the writer's. It's in your best interest to have a contract with the publisher. Do not allow your work to be published anywhere without a contract. It's up to you, the author, to carefully read the contract and make sure you understand what it means, and, if needed, make changes to protect your rights.

A contract can be simple (for this column, the web mistress and I had an email conversation in which she offered me the space to write a 10 month/year column on issues around writing lesbian erotica, gave me a payment agreement, and a deadline for each month and I emailed back my agreement to those terms.) or complex (contracts can involve reams of papers and detailed instructions) depending on what is for sale and how payment will be made.

The Basics

Here are some basic terms and concepts you should look for in your short story contracts:

What are you selling?

When you sign a contract, you are selling the rights to do certain things with your manuscript. Normally this is for a one time use in an anthology or magazine (including online publications). If it is the first time the story appears in print, it is normally the First North American Rights or First English-language Serial Rights that you are selling.

The Grant of Rights clause transfers ownership rights, and, therefore, control over, your manuscript to the publisher. It's necessary and appropriate to grant some rights such as the right to print, publish, and sell printed book editions including your story.

Never assign or transfer your copyright or "all rights" to a publisher. (In case you missed it that sentence got its very own paragraph.)

Use discretion when granting rights in languages other than English and territories other than the United States (its territories) and Canada. Also, limit the publication formats.

Subsidiary rights are uses that a publisher may make of your manuscript other than issuing it as part of the print book edition. Print-related subsidiary rights include book club and paperback reprint editions, publication of selections, condensations or abridgments in anthologies and textbooks, and first and second serial rights in newspapers or magazines. Non-print-related subsidiary rights include motion picture, television, stage, audio, animation, merchandising, and electronic rights. In the case of a short story, you will most likely not be asked to transfer these rights to the publisher. I mention them here as a precaution. If the short story contract includes these rights, you should not sign it. There really isn’t a reason for you to give these rights to a publisher of your short story. In short, if Disney wants to make your short story into a movie, you want to own that right.

What are you getting for the sale?

Flat fee. In most cases you will receive a flat fee for the use of your short story. This can range from $25 upwards and is normally in the $75 to $150 range. It is a one time payment for use of your story in the anthology, web site, or magazine, usually paid on publication. It can be paid on acceptance or the first quarter after publication. The amount and when you will be paid should appear in the contract. Please note that many web sites archive their issues and readers can access past issues at any time and this is included in your flat fee payment.

Advances. It is unlikely you will receive an advance for a short story. An advance is money given to you by the publisher before publication and is normally given against potential revenue to be earned. That means, the advance will be subtracted from the profits generated by the book before you receive any additional payments and if enough money is not earned, you may end up owing the publisher money.

Royalties. It is unlikely you will be offered royalties for a short story, but it is not completely unheard of. The Best of The Best Lesbian Erotica anthology which pulls stories from the previous five years of BLE anthologies into an "Best of" anthology, offers authors a choice of a flat fee or a percent of the royalties. Royalties are an agreed portion of the income from a work paid to the author. This is usually a percentage of the retail price of each copy sold. As such the total amount paid is based on the number of copies sold.

Merchandise. It is normal that each author will receive one to four copies (two being average) of the publication their work appears in as part of their compensation. The number of copies is often higher when no monetary compensation is being given. It is highly unusual for no copies to be included. The number of copies is normally included in the contract along with the monetary payment.

Author Price copies. Some publishers offer authors copies of the anthology their work appears in at a reduced price. If you are getting royalties, please note you will not receive royalties for copes sold at author prices. You may resell your author copies at any price you like. Many authors sell copies of their books at a reduced price at readings that aren’t in book stores.

Other Normal Language in Short Story Contracts

No competing use. You agree not to publish the story elsewhere in any form until a period of time (usually a few months to two years) after it is published by the house that purchased it. The amount of time should be listed in the contract if this clause appears in the contract. Be careful that this clause doesn’t list where you can resell your story, just how long you have to wait.

Warranty. It's completely appropriate for you to warrant that the story is original, has not been previously published (if it hasn't), that you maintain control of the copyright, and that you have the right to sell it.

Indemnity. What this clause basically says is that if a lawsuit arises from the printing of your story, that you hold harmless the publisher of the story. In other words, if someone decides to sue the publisher alleging that your story is plagiarism or libel, you are agreeing to pay for any and all expenses incurred in a lawsuit. Get this clause removed from your contract or I’d suggest passing on the publication.

Two Ps and Two Ts. A publication date, often listed as by month and year (July 2008), is normally included in the contract along with the title of your story and your name (or pen name) as it will appear in print, the amount you will be paid, when you will be paid, and, in the case of an anthology, the working title.

A Final Note

I have a personal rule that I don’t give away my work for free. By that I mean if someone publishes my work I expect to be paid with cash for it. As a good friend of mine is found of saying "Writing is a business." And he is correct. You wouldn’t go to the office or warehouse or hospital and work without clocking in and getting paid for the hours you were there. Why should your writing be any different? I strongly suggest, especially if you are a new writer, that you avoid giving away your work or posting it on your web site for the world to read for free.

That said, it is completely alright to occasionally give a story to an editor for free when you will be getting some kind of non-monetary payment. For example, exposure to a new audience that you wouldn’t be able to reach any other way or warm fuzzy feelings for donating your story to an anthology raising funds for a good cause.

Resources

If there is an issue you would like me to address in Two Girls Kissing, please email it to me, Amie M. Evans, with the column title as the subject line. To be added to my confidential monthly email list, please email me with subscribe as the subject line.

Amie M. Evans
May/June 2007

______
"Two Girls Kissing: Writing Lesbian Literary Erotica" © 2007 Amie M. Evans. All rights reserved.

About the Author: Amie M. Evans is a widely published creative nonfiction and literary erotica writer, experienced workshop provider, and a retired burlesque and high-femme drag performer. She is on the board of directors for Saints and Sinners GLBT literary festival and graduated Magna cum Laude from the University of Pittsburgh with a BA in Literature and is currently working on her MLA at Harvard.
Read Amie M. Evans' bio at the Erotica Readers & Writers Association.



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'07 Book Reviews

Anthologies

A for Amour / B for Bondage
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Best Women's Erotica '07
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The Butcher, The Baker...
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C is for Coeds
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Cream: The Best of ERWA
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Cream: The Best of ERWA
Perceptions by Cervo

Coming Together for the Cure
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Cross-Dressing
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F is for Fetish
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Got a Minute?
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He's on Top
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Love on the Dark Side
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Lust: ...Fantasies for Women
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The Mammoth Book Vol 6
Review by Lisabet Sarai

Naughty Spanking Stories
Review by Ashley Lister

Quickies 1
Review by Angelika Devlyn

She's on Top
Review by Ashley Lister

Sixteen of the Best
Review by Ashley Lister

Novels

Amorous Woman
Review by Lisabet Sarai

The Boss
Review by Angelika Devlyn

Burning Bright
Review by Lisabet Sarai

Call Me By Your Name
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Cockhold
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Continuum
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Dark Designs
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Equal Opportunities
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Enthralled
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Flood
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Gothic Blue
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Hotbed
Review by Ashley Liste

The Lords of Satyr: Nicholas
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Love Song of the Dominatrix
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Ménage
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Riding the Storm
Review by Lisabet Sarai

The Silver Collar
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Split
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Suite Seventeen
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Sweet as Sin
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Tiffany Twisted
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Top of Her Game
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Whalebone Strict
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Wife Swap
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Wings of Madness
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Historical Obsessions
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Homosex: 60 Years of Gay...
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Standish
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Sex Guides

The Path of Service
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Secrets of Porn Star Sex
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Touch Me There
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Non-Fiction

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Daddy's Girl
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Dirt for Art's Sake
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Entangled Lives
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Impotence: A Cultural History
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I, Goldstein: My Screwed...
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In Praise of the Whip
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Insatiable: ...Porn Star
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Letters of a Portuguese Nun
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Ron Jeremy
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Virgin: The Untouched...
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The Year of Yes
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