The Latest Tumblr Debacle
Jul. 21st, 2021 09:15 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
ermingardenTl;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.
(no subject)
Date: 2021-07-22 07:10 am (UTC)I'm kind of with you, I don't give a shit about Tumblr and its fate; fandom will migrate and survive, as it always has. But equally, attempts by corporates to monetise fanfic have never ended well either, so I'm not sure what they're hoping to achieve here.
Watch and wait, as always, I guess!
(no subject)
Date: 2021-07-23 01:51 am (UTC)ifwhen this doesn't work out, Tumblr may go the way of Vine; it just isn't bringing in profits. I wonder where the new center(s) of gravity in fandom will settle? Here and on (ugh) Twitter?(no subject)
Date: 2021-07-22 05:06 pm (UTC)I am not even on tumblr anymore, but I guess they can still surprise me with sheer incompetence.
(no subject)
Date: 2021-07-22 08:06 pm (UTC)(no subject)
Date: 2021-07-22 08:51 pm (UTC)Honestly, I still believe that 99% of fanfic is derivative, not transformative. And I don't care all that much about Tumblr, either. Fandom platforms come and go (though I wish more people used Dreamwidth).
(no subject)
Date: 2021-07-23 12:26 am (UTC)I wish more people used Dreamwidth, too! I do think that if Tumblr goes down the drain for good, not everyone is going to be ready to move to Twitter, so I expect more people who started out in Tumblr fandom will settle here. (I did!)
(no subject)
Date: 2021-07-23 08:05 am (UTC)But it also distresses me that apparently people have begun to harrass the Post+ testers. Bombarding them with hate doesn't help anyone. Also, the survey Tumblr offer is a far more efficient way to express one's opinion.
(no subject)
Date: 2021-07-23 08:11 am (UTC)...yeah, that sounds like Tumblr all right.
(no subject)
Date: 2021-07-25 03:02 pm (UTC)I really love Dreamwidth and believe it is the best of all the currently available social media options, but it's been hard convincing people to re-join and use this site when they're already established elsewhere. My hope is that eventually there will be enough of a quorum here on DW that it won't matter to me what happens to tumblr because I won't be using it as my primary mode of fandom interactions.
The only way tumblr+ would make sense is if they used it for the NSFW stuff that got banned in the last purge OR some kind of opt-in service to provide users with extra perks, like Dreamwidth or Discord Nitro. Anything else is just a disaster in slow motion.
The question now is, are the tumblr site owners going to listen to the userbase saying "trust us, this is a bad idea," or is it going to be Damn the Torpedoes, Full Speed Ahead Because We Need Money and Image-Hosting Isn't Cheap? Stay tuned for the next on Fandom Soap Opera!