Breaking down Tumblr’s latest Post+ Statement
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.
This post is malicious and intentionally misleading. They intend to scrape a profit off of fan writers and artists on their way to the courthouse.
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