One of my early blog posts discussed the moral dilemma for erotica authors (read more…). It is imperative that I’m writing erotica safely, and in that article, I brought up some of the issues that I dealt with both as a person, and as a member of a family and community.  I posted that article in January of 2020, and it has remained in the back of my mind all this time. Lately I’ve thought more and more about getting published, and with that comes commerce, and with it comes liability.

Ouch!

Liability in Commerce

Most of us don’t think about liability, other then when we talk to our insurance agent about the cars we drive. It’s easy to see liability in an accident. Accidents are not done on purpose, otherwise they would not be accidents. Yet, someone is always at fault. That means someone has to pay for the damages.

In business, and don’t fool yourself, publishing is a business, we have to deal with liability.  If we put a product into the market, and someone is harmed by it, we can be responsible for the damage.  Ask any ladder company and they’ll tell you exactly how easy it is to get sued.  A term that I was taught early in my career is ‘foreseeable misuse.’ It is a very interesting concept. It means that as people who make products – books are products – we must be good enough to understand how something may be misused and warn against it.

If you think I’m kidding, or exaggerating, look at the trigger warnings on movies, television shows, and now in novels.  It is a producer’s responsibility to ensure the buyer has all the information necessary to safely use the product.

How can you be sued for writing fiction?

You, as the author and producer of the goods, even if sold through others, are responsible for any financial harm caused by your product. In writing the most common issues you’ll face are plagiarism, copywrite infringement, and other more esoteric legal problems.  Yet, they are there and if you are not protected, you are not writing erotica safely.

If you self-publish through KDP, you are liable for any harm your product causes. What harm can a book cause, you ask?

A few fun facts from an article in writersrelief.com from October 25, 2017.

A writer was sued by a random reader: A man claimed Jay-Z’s book Decoded incorporated a bunch of text from an allegedly stolen laptop.

Someone who wrote a memoire, was sued by his family because the story did not ring true to the people he was writing about.  He got sued, and settled, including an apology later to the family.

Authors sue authors, publishers are sued by readers, agents are sued by authors.  There are millions of reasons why someone can claim damages from your product. 

It won’t happen to me, is a bad plan.

How do you protect your family, and keep writing erotica safely?

First, you need to treat your writing as a business.  If you don’t, you allow your families’ wealth (or lack thereof) to be jeopardized. If you, and individual, write a book and get sued, your bank account will suffer, but all your assets will be at risk.  Your homeowners, or renter’s liability policy won’t help you. You are at risk from being taken to court and have your assets endangered by someone with time and money and the desire to take you to court.

You could set up a DBA (Doing Business As) self-proprietorship, but that will not protect you in a lawsuit.

In most, if not all, states of the Union, you can set up a personal, pass-through LLC (Limited Liability Corporation).  I’m not a lawyer (this is the disclaimer) and you should talk to an accountant or a lawyer before deciding to set up any form of company including an LLC.

To manage the LLC properly, and to protect your assets from any liability incurred by the LLC, you have to keep from comingling your fonds (your assets).  They have to be separated.  The LLC needs to have its own bank account, it will have its own tax identification number (you get that from the IRS), and you must set it up in accordance with the rules of your state.

If the LLC is taken to court, only the assets of the LLC are in jeopardy, not your personal assets. Your house is safe, your cars and savings accounts are safe (again I’m not an accountant, check with one), as long as you don’t break the separation between the personal and the business (LLC) sides.  If you break the separation, you allow others to break it in the other direction.