I am not a lawyer, but I can decently interpret legalese and, being as I also suffer from tl;dr syndrome and assume others may as well, I took one for the team and went through the updated TOS for the post+ accounts and highlighted (what I understand to be) the most pertinent information, which ultimately comes down to this:
You cannot monetize copyrighted works (aka charge and earn money from fanfic, fanworks, etc) and if you do decide to put your fanworks behind a paywall via Tumblr, when you are inevitably sued, Tumblr will not protect you and will not defend you and you alone, personally, will be responsible for whatever monetary damages said lawsuit results in.
If anyone is a lawyer and knows I’ve gotten any of this wrong, please do not hesitate to correct me/this post.
1. Your paid account will not be hosted by tumblr; it is routed through a 3rd party.
2. By signing up for a paid account, you’re entering into an agreement with Stripe, so in addition to Tumblr’s TOS, you are also bound to Stripe’s TOS.
3. Stripe, like Tumblr, will not defend you or protect you against any lawsuits.
4. Furthermore, you may end up owing Stripe money (indemnify = compensate)
5. Tumblr’s TOS specifically states that you can’t put any content on your post+ account that violates any laws, including laws that protect intellectual property rights of others. This is super important, because Tumblr’s post+ FAQ also states that you can post anything that you would regularly post on tumblr, which I’m sure many will take to mean that gifsets, fanworks, etc are fair game, since all of that stuff can be posted on tumblr now. However, the difference is, you’re not making money from the fanworks you’re posting or reblogging now. Once money enters the equation, the game changes.
Tumblr is making it seem like any and all content goes for post+ accounts, knowing 90% of this site is fanworks. This is not true and you’ll be opening yourself up for lawsuits if you charge for fanworks.
6. Tumblr further disclaims any and all liability in any legal issues.
tl;dr: Please do not make a post+ account, bc you will be opening yourself to lawsuits and if that happens, Tumblr’s response will be not our problem, you agreed to all the terms which said you couldn’t do that, sorry not sorry. Please protect yourself.
We do, however, want to address the main concerns we are hearing:
Fanfiction & Copyright Infringement
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.
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.
Any content posted on Tumblr, both free and monetized, should follow our Terms of Service and Community Guidelines, which prohibits infringing the intellectual property rights of others. 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. If they do, they can use the normal Tumblr DMCA process to identify content for removal. Creators can also take advantage of the normal counter-notification process if they believe the content was misidentified as infringing.
So, basically, with a bit of fancy wording around it how it’s gonna be Totally Cool, No Worries on tumblr’s side, OP’s point still stands fully, imo.
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
means
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.
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.
Emphasis mine.
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.
!!!!!!! If possible please reblog this version, re: tumblr’s stance on fair use. I’ve already seen a few people saying tumblr said it’s legal to monetize fanworks, so their post is definitely sending the wrong message to users.
i have thought a lot about censorship and what is “appropriate”. not a lot of people know this, but lolita was written to show what we allow on our bookshelves: there being no swear words in it meant it was free from censorship. a book about child molestation was allowed because it didn’t explicitly use the word “fuck”. he wrote it to show we don’t really care about protecting children, and it ended up being seen as a romance.
someone once told me - actually, many people have - that lgbt content isn’t appropriate for children. any content. not just kissing. i’m drowned in questions: “won’t the parents have to explain it?” “kids shouldn’t be thinking about sex at this age, or do you think differently?” “what will the kids think?”
at six i saw disney movies. people kiss and get married. i didn’t ask “what does that mean.” i didn’t ask “are those people going to have sex?” i didn’t ask anything, because i was six, and no six year old thinks twice about these things. nobody ever “explained” being straight to me, it was a fact, and it existed, and i was fine with that. why would being gay require a thesis, i wonder.
someone once told me that the one of the reasons people hate lgbt individuals is because they can’t see us as anything but sexual. we’re not people, so much as sinners. that they don’t see love, they see sex. just sex. it’s perversion, not a matter of the heart. only of the body.
i think i was in my early twenties before i saw someone like me.
how old were you, though, before you saw violence? before you saw sexual assault on tv? i think something like that is only pg-13, and if it’s implied, they can get away with anything. i remember watching things and learning about blood, but knowing sex - sex was what was really wrong. sex was always rated r. sex was always kind of a bad word. i was told a lot that i wasn’t ready.
i had a dream last night that i made a site where people could ask any question they wanted about sex and get answered by a professional. it was shut down in moments because 15 year olds wanted to know if it should hurt, if “double-bagging” was a real thing, if this, if that. we shudder. don’t let the children know about that!
but at thirteen i had seen enough violence it no longer struck me. i couldn’t say “fuck” but i knew that if you break your femur, you can bleed out internally in under half an hour. in school i wasn’t allowed to write about loving girls because what would the administration think - but i could write about wanting to kill myself and people would say how lovely, how blistering.
i have thought a lot about censorship. sometimes people on this site try it with me: don’t write this, don’t be so nasty. some of it is intrinsic. we know as people with a uterus not to complain about “that time of the month”, we know better than to talk about sexual assault (how shameful), we know that talking about a vagina is somehow scandalous. i can say “dick” and nobody questions me. some people only refer to the bottom half of me by “pussy”. they won’t wrap a mouth around “vagina” like it’s poison to them. even discussing this, that the language halts, that there’s an intrinsic desire to say “girls” instead of “women” - feels naughty, illicit. not for children.
the other day someone suggested i make my blog 18+. i said, okay, it deals a lot with depression and other problems that might be for a mature audience. oh no, they said, that’s not it, i think that’s helpful. i said, okay. so what is it then. well, you’re gay. you write about loving women. and i said, i don’t write about sex often and they said. it’s not about the sex. but wlw isn’t for a general audience. teenagers aren’t ready.
oh.
lolita is recommended for high school and up. i think about that a lot. i know girls who love it, who say it speaks to them on a deep level. it’s beautiful prose, after all. that was the whole point of the novel. something that looked like a rose but was intrinsically awful. i think about how if i was a model they’d want me to look young, thin, prepubescent. how my body would be sold and how through the mall i walk by images of barely-clothed women while mothers cannot breastfeed in public without fear of retribution.
i think about how i can write a novel about violence and it will be pg-13 but if my characters say “fuck” twice it’s inappropriate. i said fuck three times so far in this post, which makes it only appropriate for adults.
i think about that, and how my identity is something that people suggest lines up with a swear word. that people shouldn’t talk about it. that it’s a vulgarity. bad for children, harsh, confusing.
fuck. i love women. which one makes this only for those over eighteen.
This is such a powerful post. Read it fully, and spread it around.
me, every time i come across a post listing the symptoms of adhd:
The ADHD community actually encourages self-diagnosis, especially in adults! It is hard or even impossible to get diagnosed with adult ADHD if you weren’t diagnosed as a child because the medical system sucks. And if your psych doesn’t work in pediatrics then you probably know more about ADHD and how it affects you than they do.
As someone who has struggled with ADHD my whole life, like…
Even if you don’t have it, learning more about it and about yourself is never a bad thing. And if you relate to lots of posts, then that usually leads to you finding ways to cope with ADHD traits or difficulties… So in the end more “brain-hacking” knowledge is shared for things like time blindness or executive dysfunction. And that helps people, ADHD or not.
Hi just letting y’all know that Sia, the artist, is making what is essentially a big “F you” to autistic people. She is collaborating with Autism Speaks which is an organization that believes autism is something to be cured and treats autistic people like burdens. It is another run of the mill inspiration p**n movie for non autistic people and able bodied people to feel like they have compassion and understanding for us. For any of you who are not autistic and are able bodied, please do not support this film as it perpetuates bad stereotypes about autism and disabled individuals.
Also there are no autistic actors in the film and they used the trope of the autistic person constantly having headphones on.
and not to mention this tweet she sent to an autistic actor
Just so you all know what’s going on right now. Please don’t support this film, and please listen to autistic people when we advocate for ourselves. We’re the best people to speak for our experiences, like any other oppressed group.
I have been here, multiple times!
By referring to the order as a “Little Rosa”, you don’t have to make as big a deal out of the fact that you’re seeking help.
And believe it or not, it gets better. Rosa’s also gives out sweatshirts to the homeless (or sells them to the general public) that has information on local soup kitchens and even computer training in the area, on an insert sewn inside the sweatshirt.
You guys are dangerously close to realizing specifically what kinds of people they keep from voting and why.
I want to drill this into everybody’s head:
The United States of America has the highest prison population in the world
Black Americans and Latin people make up the majority of this population (many of whom are non-violent offenders)
Federal Prisons in America require that their state keeps their prisons at a maximum occupancy at all times.
The 13th amendment did not entirely abolish slavery…just one form of it. It remains legal through industrial prison system
Oh and we have privatized prisons which allow companies to actually make money off of keeping people incarcerated
Here’s what’s really perverse: prisoners, who cannot vote, still get counted in the U.S. Census. The more prisoners a county has, the more representation it gets, even though the prisoners cannot vote. See how that works? The more black and brown people they lock up, the more government resources and political representation they get. Even though those prisoners have no say and cannot vote.
If county-A has a population of 50 voters but no prisons, and county-B has a population of 50 voters and 50 prisoners, the county with the prisoners gets more government funding and more political represention. This is sometimes called “prison gerrymandering” and it is used in redistrictring.
Not so fun Fact: Southern states that reliably vote for Republicans also have the highest prison population in the United States. (source). So mass incarceration is a double whammy. It’s both a form of voter suppression and a tool to strengthen white people’s political power.
