Thanks for the addition, @hidden-but!
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
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.
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.
tl;dr: Copyright law and "fair use" are much more complicated than you might think, and the latter is probably not going to hold up as a defense if someone comes after you, and Tumblr still will not protect you. So again, by creating a post+ account and putting fanworks behind a paywall, you will be making yourself very vulnerable to legal action being taken against you and Tumblr will not do a thing to help you.
amandla
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