psa: don’t mention commissions/patreon on AO3
Hi guys! So I know we all don’t actually read the terms and conditions of things and just hit agree assuming there’s nothing important in there (I do it too oops) but if you take writing commissions or anything involving money, then there’s actually something in the AO3 terms and conditions to be aware of.
Linking to a personal website or blog/social network where you are taking donations, posting commissions or mentioning published works is permitted, but advertising it directly on the Archive is not, nor is using language which one might interpret as requesting financial contributions. For example, you can say something to the effect of “check out my Tumblr if you want to know more about me and my writing” and include the link to the site, but you cannot specifically state anything about donations, commissions or sales on the Archive.
Today someone reported one of my fics as violating this condition - presumably because I’d mentioned my patreon in the author’s note (I wasn’t actively requesting donations either… I’d literally just mentioned that it existed, and that the fic in question was written as a thank-you for hitting one of my goals).
I’ve written to AO3 to check whether just saying ‘thank you to those who support me on patreon’ is fine and I’ll let you guys know when they get back to me, but if it’s still going too far in terms of being a ‘commercial promotion’ then I’ll just avoid mentioning this in the future! :’)
As I said, someone did actually report my fic for this - so there are people out there who are noticing/reporting these situations. Please be aware of this if you take fic commissions, or use patreon or ko-fi, because your account could end up suspended, which of course no one wants!
<3 <3
UPDATE: AO3 got back to me - you’re not allowed to mention or link to patreon at all, regardless of how it’s phrased. Not sure if it’s the same for ko-fi but it might be better to be safe than sorry!
<3 @kahnah23 relevant to you and possibly some others~
That’s a fucking bullshit rule, I’m sorry. They shouldn’t deny you the opportunity to advertise your own work.
archive of our own is run by the organization for transformative works. ao3 and the other services that otw offers - including legal services for fan creators who get in legal trouble - are nonprofit organizations.
this isn’t just a self-determined descriptor; that’s a legal definition that requires adherence to specific rules and laws regarding income, profit, and donations.
this isn’t a “bullshit rule” just meant to prevent creators from advertising. in op’s post, the contact from ao3 offers a roundabout way to advertise. this rule ensures that ao3 and the organization for transformative works to stay a non-profit organization - this “bullshit rule” is essentially a way so that ao3 and the other services that the organization for transformative works can stay online.
it’s not just about maintaining nonprofit status. (i question if that’s even applicable here, since the profits in question don’t go to the organisation, but i know very little about nonprofit law. just a gut feeling.)
the actual point is, they run a legal services organisation for fans who get into legal trouble. they literally exist for the purpose of helping you not get into legal trouble. profiting from fan fiction very much opens you up to the possibility of getting into legal trouble. they’re not going to let people do things on their website that they know will land them in exactly that trouble.
and to be clear, just because everyone who slaps a patreon button on their tumblr isn’t getting sued, doesn’t mean they aren’t doing something for which they could be sued.
let me say it again: profiting from fan fiction very much opens you up to the possibility of getting into legal trouble.
here’s why.
use of other people’s characters is subject to copyright law. the general principle that makes downloading a movie or a song piracy also applies to the use of a character, assuming certain factors such as uniqueness.
how fan fiction has come to scrape by in the past: by not being a commercial enterprise.
in contrast, for use music, video, images incorporated into new works: by being significantly transformative.
these two factors, commerciality and transformativity, are considered side by side. the greater the transformativity, the less weight commerciality will be given. if something is highly transformative and non-commercial, then it’s almost certainly fine. down the other end, if it’s not at all transformative and commercial, forget it.
it’s a matter of judgement as to what degree of transformativity there is in the work that will push it over the line to overcome the general prohibition against commercial use. but fan fiction in the truest sense is barely transformative. in fact the goal is to come as close to copying a character as possible.
an analogy with the use of music: a cover band, despite every part of the performance of the song being done by that band, is still playing a song that was created by someone else. you, the fic writer, as covering someone else’s character.
the cover band you see at your local bar? they, or the local bar itself, have paid a fee to obtain permission to play that song. (even if they were playing for free they would still have to obtain permission, because any public performance of copyrighted music is prohibited.) in contrast, use of a line from one song in another another song that uses the line for parody? fine (Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994)). let’s call that the AU with the names changed, the location different, and everything about that character’s backstory is gone. they just look like the actor and have a dialogue pattern that matches.
the better you are at writing a character in character, ironically the more likely you are to violate copyright law. and that’s why the commercial factor becomes incredibly relevant.
basically, don’t get paid, keep being cool with the law*.
*this is not an endorsement of the principles of copyright law itself. this is about what that law is and how it works.
People also forget the reason why disclamers on fics became so prevalent.
Please understand that profiting off fanfiction, fanart and all forms of fan-content is direct violation of copyrighted material.
Your commissions to draw popular characters? Direct violation of Copyright. AO3 works hard to maintain fandom expression protected. You hurt their cause by not adhering to their term of use.
They’re there so you won’t get sued.
On this front, fandom creators in the US may want to batten down the hatches because the Trump administration is pretty much guaranteed to highly favor intellectual property owners–especially groups like the MPAA and RIAA–over fair use and transformative works.
We’ve got a lot more legal precedent than we used to on our side, but this kind of ‘bullshit detail’ has historically been a lever for these people to hang a lawsuit on and no doubt it will be again.
Yeah, afaik fanworks have more legal protection than they used to, but that could go away in an instant.
Anybody else old enough to remember writing at the beginning of each chapter of their fiction “I DO NOT OWN X, I AM NOT MAKING ANY MONEY OFF X, I WRITE ONLY FOR THE LOVE OF A/B. X is the property of Y, please do not sue me I am 13 and you will only get 37 cents” because I am and this is why you don’t fuck around with copyright law. Fanworks have come a long way in respectability and legality. But profiting off it can still get you in trouble. Be careful kiddos.
The OTW has done so much in getting non-profit transformative works to be legalized, especially getting copyright exceptions for vidding. Let’s not screw this up now, guys.
The discussion of copyright could be refined a little here…but let’s be blunt, to some extent, it doesn’t matter. Regardless of the law, AO3 was established with a deliberately noncommercial ethos–in fact, in specific response to contemporary attempts to commercialize fandom. The rule exists in service of that ethos. Don’t like that “bullshit?” Well, then, I guess you should just go read and publish fic on that other free platform that doesn’t exist to turn you and your personal data into a product to sell off to capitalism’s highest bidders. What’s that? You say that doesn’t exist? Hmmmm, I wonder if that’s a coincidence.
