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Legal Ease: Equal protection for erotica novelists

One of my best friends from college is an erotica novelist. Under the "pen name" or pseudonym (a legally acceptable fictitious name for writers) Crystal Jordan, she explores sex with an open mind. Free to express herself with amenity, she eagerly divulges the hidden passions, fantasies and emotions, of one’s imagination.

However, after speaking with her recently, I was surprised about how many legal and privacy issues she was confronted with before choosing to write under this fictitious name. I was also surprised to learn that making such a choice actually limits one’s legal rights. For example, when using a pen name, her work, although protected by copyright, is valid only for 75 years – as opposed to a lifetime under one’s legal name. To write fictitiously, then, comes at a price.

This legal fact (and many others) make it difficult for an aspiring writer to decide. I suppose weighing one’s privacy and protection, versus what one gives up for this protection is an individual choice – or is it? Perhaps a better question should be, why should it be a choice at all? Why not afford a writer using a pen name all the same legal rights and protections afforded to one using their legal name?

As the law stands today, and after my conversation with Crystal, I agree that protecting oneself through the use of a pseudonym is probably better – even though the rights are not equal. People’s comfort level and individual desires regarding their own human sexuality is as endless as the hundreds of different language dialects on the planet. For most, talking about human sexuality and what it means, is a conversation better left for another time, similar to people debating politics or religion. For Crystal, however, and other writers like her, it consumes her daily thoughts, trying to meet deadlines set by her publisher and readers. It is not an unwanted discussion, but one that thrives, and as Crystal has realized along her journey, she is probably better served under her pen name.

Crystal started her sultry writing journey in conservative Tennessee. She later moved to Salt Lake City, Utah. Being in these red states, Crystal quickly realized the importance of privacy, protecting herself through her pen name individually, publicly, and at work.

Crystal works at a university and tells me that many universities (much to the surprise of this author), usually look down upon people who write erotica. Especially in her case, since her novels often feature characters engaging in such behavior as threesomes, group sex, gay relationships, fetishes, and so on. Protected under her pen name, however, Crystal will leave no leaf unturned, exploring the richness and fullness of her “controversial” written materials.

While living in Utah, her first, non-e-book published work started selling at Barnes and Noble. However, when discussing this accomplishment with her, she exclaimed with an uncomfortable laugh that “I am sure glad I decided to write under my pen name; otherwise, I might have had crosses burning on my front porch because I am writing about men doing it with other men here in Utah.” These privacy concerns are real for Crystal. She is thankful that our legal system, through copyright laws, has afforded individuals the ability to write under a fake name; but she also expressed to me her desire to still be afforded the same rights as those using their legal name. And why shouldn’t she? Crystal creates where others shy away.

Regardless of what one believes or practices, one must admit that we are sexual beings and there is a market for sex. By using a pen name, the law has created a legal fiction to preserve one’s amity while simultaneously ensuring all royalties.

Because Crystal works at a university, where she interacts publicly, her pen name allows her to preserve her amenity - the brilliance behind this legal fiction.

I guess the next big debate, once gay rights are fully and finally achieved, will be the rights of writers using pseudonyms versus those who can, and do, write under their legal names. People like Crystal deserve these equal protections, and the law should reflect her courage, acceptance, and imagination.

Thomas Hughes is a criminal defense attorney with a in practice in downtown San Diego. He is an active member of the GSDBA and the LGBT Bar Association. Visit his website www.thomashugheslaw.com