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The Latest Tumblr Debacle
Jul. 21st, 2021 09:15 pmTl;dr: please don't try to make money off your fanfic.
According to a Tumblr spokesperson, "Tumblr’s Post+ will push the boundaries of what’s considered money-making content on the internet: Shitposters, memelords, artists, fan fiction writers, all of the above and everyone in between will be able to create content while building their community of supporters, and getting paid with Post+" (emphasis added).
I'm no expert in copyright law, but creating a platform explicitly advertised as a way to monetize fanfic seems like a very bad idea. There is a reason AO3 is very strict about references to payment! If a lot of fanfic writers and fanartists do sign up for this Post+ thing, you can bet there's going to be a legal battle. Tumblr may think they can win – or maybe the company that currently owns Tumblr simply thinks taking the risk is the only way the site can remain marginally profitable. Honestly, even after kicking around on the site for a decade, I'm not super fussed about the fate of good old Tungle Dot Hell. But although anyone who's been around in fandom even a few years will remember the days when disclaimers were really common and there was a general fear of lawsuits over fic, I'm a little worried that young fan creators will sign up for Post+ and get caught up in a lawsuit.
There isn't a huge amount of case law about the legal status of fanfic. The OTW's position, and consequently the dominant attitude in at least the circles of fandom I inhabit, is that fan creations are legal under the fair use principle in US copyright law, but the question isn't completely settled. In my read of the situation, a big reason there isn't a lot of precedent is that under current conditions, it just isn't profitable to sue fan creators! Broadly speaking, no one is making money off of fanfic, and fan creators just don't have enough money to make individual lawsuits profitable. My guess is that if a suit against a fan creator actually went to trial, and the copyright holder prevailed, it would be impossible to prove actual damages (i.e., lost profits for the copyright holder), disgorgement of profits would be fruitless (since fan creators aren't making any profit), and a judge would presumably award statutory damages at the low end of the prescribed range, which probably wouldn't even be enough to cover legal fees. (See 17 U.S.C. § 504.) But if Tumblr starts making money by taking a cut of subscriptions to what basically amounts to paid fanfic, suddenly there's a nice, fat target for litigation. Plus, a major factor a court considers in determining whether something qualifies as fair use is whether anyone's making money off it; making money off your fic not only makes you a more tempting target for a suit, it makes you far less likely to prevail.
According to a Tumblr spokesperson, "Tumblr’s Post+ will push the boundaries of what’s considered money-making content on the internet: Shitposters, memelords, artists, fan fiction writers, all of the above and everyone in between will be able to create content while building their community of supporters, and getting paid with Post+" (emphasis added).
I'm no expert in copyright law, but creating a platform explicitly advertised as a way to monetize fanfic seems like a very bad idea. There is a reason AO3 is very strict about references to payment! If a lot of fanfic writers and fanartists do sign up for this Post+ thing, you can bet there's going to be a legal battle. Tumblr may think they can win – or maybe the company that currently owns Tumblr simply thinks taking the risk is the only way the site can remain marginally profitable. Honestly, even after kicking around on the site for a decade, I'm not super fussed about the fate of good old Tungle Dot Hell. But although anyone who's been around in fandom even a few years will remember the days when disclaimers were really common and there was a general fear of lawsuits over fic, I'm a little worried that young fan creators will sign up for Post+ and get caught up in a lawsuit.
There isn't a huge amount of case law about the legal status of fanfic. The OTW's position, and consequently the dominant attitude in at least the circles of fandom I inhabit, is that fan creations are legal under the fair use principle in US copyright law, but the question isn't completely settled. In my read of the situation, a big reason there isn't a lot of precedent is that under current conditions, it just isn't profitable to sue fan creators! Broadly speaking, no one is making money off of fanfic, and fan creators just don't have enough money to make individual lawsuits profitable. My guess is that if a suit against a fan creator actually went to trial, and the copyright holder prevailed, it would be impossible to prove actual damages (i.e., lost profits for the copyright holder), disgorgement of profits would be fruitless (since fan creators aren't making any profit), and a judge would presumably award statutory damages at the low end of the prescribed range, which probably wouldn't even be enough to cover legal fees. (See 17 U.S.C. § 504.) But if Tumblr starts making money by taking a cut of subscriptions to what basically amounts to paid fanfic, suddenly there's a nice, fat target for litigation. Plus, a major factor a court considers in determining whether something qualifies as fair use is whether anyone's making money off it; making money off your fic not only makes you a more tempting target for a suit, it makes you far less likely to prevail.
