cfiesler:So  it’s not surprising Tumblr is trying out monetization, because I suspect tha

cfiesler:

So  it’s not surprising Tumblr is trying out monetization, because I suspect that ALL user-generated content platforms are headed that way.  But I am absolutely gobsmacked that they’re explicitly calling out fanfiction as an example of something that Tumblr users should monetize.

I mean, we all know that norms around commercialization of fanworks are changing, e.g. patreon. And we also know that commerciality isn’t an automatic “nope not fair use now” magic button, but there is a good reason that OTW and AO3 specifically only focus on and allow on the platform noncommercial fanworks.

Like, sure, join the monetizing creators bandwagon, Tumblr, but I absolutely would have expected you to pretend you don’t know people might be monetizing fanworks.

Source: https://techcrunch.com/2021/07/21/tumblr-debuts-post-a-subscription-service-for-gen-z-creators/

[Caption: “Not reserved only for professionals, or those with 10K followers or higher, 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+,” a Tumblr spokesperson told TechCrunch.]

To follow up on this, there seems to be some concern about Tumblr’s official statement about fanfiction. Specifically that, basically, Tumblr has no intention of “protecting” people from claims of copyright infringement.  [See the statement in full here: https://staff.tumblr.com/post/657450430647959552/the-communities-that-make-up-tumblr-are-built-by ]

(Please note that I’m speaking personally here and not on behalf of OTW Legal, though I’m guessing there will be an official statement out in the future since we’ve gotten inquiries.)

So no, Tumblr won’t “protect” you against copyright infringement claims anymore than e.g. YouTube does. If there is content on Tumblr, or any other platform, that a copyright owner thinks is infringement, the most likely course of action is that they use the DMCA takedown process, as noted in Tumblr’s statement. This doesn’t change because of the content being monetized. The only thing that changes is a potential fair use analysis. 

Likely order of operations… let’s imagine fictional copyright owner “Anne”:  (1)  Anne sees fanfiction on Tumblr;  (2)  Anne sends notice to Tumblr via DMCA processes; (3) Tumblr removed content and notifies the Tumblr user who posted it, informing them that they can file a counter-notice if they think their work is not infringing; (4) Tumblr user decides whether they want to fight it or not, which probably includes them deciding whether they think their fanfiction is fair use,  and that  analysis might  change based on whether it’s monetized; and (5) Either the content stays down, or the user sends a counter-notice, and then Anne (or Anne’s lawyers) get to decide whether they agree, and if they don’t, they can choose to sue the user.

However, at that decision point to send a counter-notice or not, the Tumblr user can just decide to let the content stay down. Or maybe they repost it non-monetized, to be safe.  So no, Tumblr will not defend you, because it’s up to a user to know whether their content is infringing. Tumblr also isn’t telling you that fanfiction (monetized or not) is fair use (or not) - they’re saying that any content on Tumblr might be fair use, which is true.  As Tumblr points out, whether you make money from something is not an on-or-off switch for fair use.  However, there is a reason that OTW specifically supports noncommercial fanworks. It is certainly a stronger fair use argument if work is noncommercial. But fair use is still always case-by-case.

But my point here is that the order of operations is almost certainly not “Anne sees your fanfic” to “Anne sues you and you end up in court.”  And basically, none of this has changed because of monetization. This exactly same process is what could have happened to any content on Tumblr a week ago.