The Heir of Salazar Slytherin

Gaius: Elevate and apply pressure.

Elyan:

Elyan: [picks up the snake and holds it high]

(via https://www.youtube.com/watch?v=YaD7Zr8Et1w)

(via https://www.youtube.com/watch?v=XLkyb0aaro0)

Comic by PetFoolery

In the wake of massive backlash against their new monitization/paywall program, Tumblr staff has given a statement in an attempt to combat one of the major arguments against it: that this would be a nightmare for fan writers and artists who are vulnerable to lawsuits for copyright infringement.

This post was meant to read as “haha, your friendly neighborhood Tumblr staff!” while actually being intentionally vague and misleading. I’ve seen people laughing it off as Tumblr having an idiot for a lawyer, but the post is actually written very cleverly. So let’s break it down:

First off, let’s make one thing clear: this information is coming to you from Tumblr’s lawyer, not yours. Tumblr’s lawyer’s job is to protect Tumblr from legal trouble and is under no obligation to give fair legal advice to Tumblr users or protect them in legal matters.

Notice that they are careful to say that they encourage sharing these works on “the platform” in general, not through the Post+ system. This gives them deniability - they never explicitly encouraged users to post this content on the monetized platform.

Yes, fanfiction and fanart are frequently considered fair use when they are not monetized. And notice in the second sentence, they switch to the much vaguer term “fan work” when claiming that something can be monetized and still fall under fair use. Fan work could refer to something as innocuous as beta reading and other fan work related services. This could also be referring to works in the public domain. Again, they have plausible deniability.

And make no mistake, there is a long, ugly history of fan writers and artists being sued for copyright infringement. It is absolutely not legal to sell, through any means, fanfiction or fan art of copyrighted content.

And here we get to the real heart of the matter. Their TOS has a clause which states that you may not infringe on another person’s copyright. They have now vaguely but deniably suggested that you can monetize your fanart and fanfiction, but whether or not you’re violating fair use “depends.” They won’t give you specifics. Because it does depend - on whether or not the work is copyrighted. But their statement implies that there are special circumstances where the nature of a fan work based on a copyrighted source makes it ‘fair use.’ This is not the case.

Most importantly, when the copyright holder comes to complain, Tumblr will not protect you. They will say that you have violated the TOS by infringing on intellectual property rights, and we never told you to. You’re on your own, kid. I wouldn’t be shocked if this is used as an excuse to withhold your Post+ revenue.

And the DMCA takedown process? That’s just the process for getting the content removed from Tumblr. It doesn’t mention that the copyright holder then has the right to go after you, personally, with a lawsuit to recoup any money you made off your Post+ subscriptions, plus damages to the brand. Tumblr, meanwhile, can keep its cut of your subscriptions because that money was paid to them for hosting the Post+ service, not for the works themselves. And, as an online platform, they are not responsible for the illegal actions of its users beyond complying with DMCA.

I am not a lawyer, but I can decently interpret legalese and, being as I also suffer from tl;dr syndrome and assume others may as well, I took one for the team and went through the updated TOS for the post+ accounts and highlighted (what I understand to be) the most pertinent information, which ultimately comes down to this:

You cannot monetize copyrighted works (aka charge and earn money from fanfic, fanworks, etc) and if you do decide to put your fanworks behind a paywall via Tumblr, when you are inevitably sued, Tumblr will not protect you and will not defend you and you alone, personally, will be responsible for whatever monetary damages said lawsuit results in.

If anyone is a lawyer and knows I've gotten any of this wrong, please do not hesitate to correct me/this post.

Screenshots taken from Tumblr's TOS (updated 7-21-21), Stripe's Account Agreement, and the post+ FAQs.

1. Your paid account will not be hosted by tumblr; it is routed through a 3rd party.

2. By signing up for a paid account, you're entering into an agreement with Stripe, so in addition to Tumblr's TOS, you are also bound to Stripe's TOS.

3. Stripe, like Tumblr, will not defend you or protect you against any lawsuits.

4. Furthermore, you may end up owing Stripe money (indemnify = compensate)

5. Tumblr's TOS specifically states that you can't put any content on your post+ account that violates any laws, including laws that protect intellectual property rights of others. This is super important, because Tumblr's post+ FAQ also states that you can post anything that you would regularly post on tumblr, which I'm sure many will take to mean that gifsets, fanworks, etc are fair game, since all of that stuff can be posted on tumblr now. However, the difference is, you're not making money from the fanworks you're posting or reblogging now. Once money enters the equation, the game changes.

Tumblr is making it seem like any and all content goes for post+ accounts, knowing 90% of this site is fanworks. This is not true and you'll be opening yourself up for lawsuits if you charge for fanworks.

6. Tumblr further disclaims any and all liability in any legal issues.

We do, however, want to address the main concerns we are hearing:

Fanfiction & Copyright Infringement

Basically, the process works the same as it always has. And yes, the following information is coming to you straight from a lawyer:

We fully support Creators sharing their fanfiction and fanart on Tumblr. We encourage sharing creative work of all kinds on the platform.

Fanfiction and fanart are frequently considered fair use and we support our Creators’ fair use rights. Monetizing fan work does not necessarily mean that it isn’t fair use.

Any content posted on Tumblr, both free and monetized, should follow our Terms of Service and Community Guidelines, which prohibits infringing the intellectual property rights of others. Whether a piece of fanfiction meets the requirements for fair use varies depending on the work. Intellectual property rights holders are in the best position to decide if they think a fanfiction or fan art violates their rights. If they do, they can use the normal Tumblr DMCA process to identify content for removal. Creators can also take advantage of the normal counter-notification process if they believe the content was misidentified as infringing.

Once again, I am not a lawyer, but here's my interpretation (again, anyone who is a lawyer please correct me if I'm wrong) of the above post (because I think it's deliberately misleading):

Basically, the process works the same as it always has. And yes, the following information is coming to you straight from a lawyer: We fully support Creators sharing their fanfiction and fanart on Tumblr. We encourage sharing creative work of all kinds on the platform.

Emphasis mine. This is worded very specifically; Tumblr is not supporting or encouraging you to sell your fanworks. They are not encouraging you to charge for your fanworks. Share =/= sell.

We encourage you to share your fanworks

means

we encourage and support posts and reblogs containing copyrighted works, but we're not telling you to SELL ANYTHING, so if you do, then the consequences are your problem.

Fanfiction and fanart are frequently considered fair use and we support our Creators’ fair use rights. Monetizing fan work does not necessarily mean that it isn’t fair use.

I think this is irresponsible wording bc it makes it seem like you have the right to charge for copyrighted works if you claim that your work falls under fair use - but how many of us actually know what fair use means? And if you don't know what it means, how can you use it as a defense by claiming your work falls under it? I'll be honest, I don't really know what all "fair use" entails but when I looked it up I found a pretty straightforward and thorough explanation that cleared things up for me.

From this article on fair use, published by Stanford Libraries:

In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an infringement.

So what is a “transformative” use? If this definition seems ambiguous or vague, be aware that millions of dollars in legal fees have been spent attempting to define what qualifies as a fair use. There are no hard-and-fast rules, only general guidelines and varied court decisions, because the judges and lawmakers who created the fair use exception did not want to limit its definition. Like free speech, they wanted it to have an expansive meaning that could be open to interpretation.

Most fair use analysis falls into two categories: (1) commentary and criticism, or (2) parody.

Emphasis mine.

Translation: You can share your fanworks (we're not telling you to sell them) and if you get in trouble, you can claim "fair use," and if that defense doesn't work because fair use isn't applicable, we will not protect you from whatever legal ramifications you face.

Whether a piece of fanfiction meets the requirements for fair use varies depending on the work. Intellectual property rights holders are in the best position to decide if they think a fanfiction or fan art violates their rights.

I'm just going to say Anne Rice and leave it at that.

Okay, I'll say more than that. Many authors, creators, etc won't hesitate to, at the very least send you a cease and desist and, at the worst, file a lawsuit against you. This is why it's so important that AO3 is non-profit and you can't link to or mention your ko-fi, patreon, etc - because many ip rights holders do not consider fanworks to be fair use and will go after authors (or artists, etc), so AO3's legal defense rests on "nobody is making money or profiting from this."

What Tumblr is doing is removing itself from any responsibility here by saying, okay, even if what you post isn't considered fair use, it's fine unless the person who owns that intellectual property decides to come after you, in which case, again, we are not going to protect you.

Tumblr went out of its way to say their statement on copyrights came directly from a lawyer. All this means to me is that Tumblr got their lawyer(s) to word their side in a way that protects them from any legal liability while still encouraging you to profit off of copyrighted works, and they're trying to make it seem like a lawyer has said this is fine, but that is very much not the case.

Ginny: But first, a few words from our newest member.