Right now, Tumblr is, as Tumblr often is, mad. While the microblogging social media platform’s community is historically resistant to most kinds of change, this latest kerfuffle is about a bigger change than a new website layout or unpopular sponsored content. It’s about money—and the legal issues that might be tangled up in it.
At the end of July, Tumblr announced a subscription program called Post+, which will allow Tumblr users to lock their posts behind paywalls, available only to those willing to pony up the cash to see it. It’s a tier-based system that gives content creators an opportunity to both monetize their work on this otherwise free-to-use platform while also offering special exclusives to subscribers; think of it like Patreon, but on Tumblr.
Part of why this is less a feature drop and more a fundamental shake-up is that, unlike Instagram or TikTok, Tumblr popularity comes with few off-platform benefits. The introduction of Post+ signaled a change to that dynamic, one that was almost immediately met with backlash from the platform’s user base. On August 6th, users went on strike to protest Post+, with one of the main criticisms being that the new subscription tool could expose fanwork creators to legal trouble. For 24 hours, these users logged off of the platform, in the hopes of denying the site a meaningful amount of ad revenue. If Tumblr really wanted their money, they said, Post+ was not the right way to get it.
Fanworks, such as fanfiction or fan art, by definition use characters and content from other published works. Creators are usually protected from legal action by copyright holders due to the concept of fair use. The definition of fair use—which means that the usage doesn’t constitute copyright infringement—is pretty flexible, and the legal world is continuing to feel out its boundaries regarding digital works in particular. But one of the main factors that courts use to determine fair use is whether the work is transformative, thus differentiating it from the original work—which most fanworks are.
When money is involved, however, things get more complicated. With Post+ asking users to spend actual money on the stories and illustrations they reblog, some Tumblr users believe that the service could open them up to legal repercussions. Their thinking stems from the belief that, as a piece by FanFare explains, “a work is only transformative if it does not affect the potential market for the original work and it is either a complete re–imaging using only the basic concepts of the original or a direct satire.” When creators ask for cash, is that affecting the commercial market? Disgruntled Tumblrites argue yes.
To find out whether Tumblr is actually opening up the vast network of fandoms that use the platform to legal issues, In Case You Missed it, Slate’s internet culture podcast, reached out to five different legal experts. For the most part, what they had to say to Tumblr users was: Don’t freak out about getting sued by corporations for your Steve Rogers fan art or Once Upon a Time fanfiction.
“You’ve got fairly good First Amendment protection based on the argument that your posts are considered expressive or artistic works about [a Disney character],” said Alexandra J. Roberts, a law professor at the University of New Hampshire. “Folks who see your posts on Tumblr aren’t going to be confused as to source or permission. If you begin making money off of your account, I don’t see it changing the calculus a whole lot.”
Kristelia Garcia feels even more strongly that Tumblr users will be safe under Post+. “This backlash [against the feature] may have merit on ‘content wants to be free’ grounds, but it has no basis in copyright law,” the law professor from University of Colorado said. “The claim [from the FanFare article, linked above] that ‘a work is only transformative if it does not affect the potential market for the original work’ is an oversimplification, and also wrong.
“If the use of a copyrighted work (say, Supernatural in a fan mash-up) is found to qualify under any, or some, but not necessarily all of these [stated] factors (to be weighed, subjectively, on a case-by-case basis, with no one factor being the determining one)—it may be ‘fair’ and therefore not infringing copyright.”
Even if no one thinks that your Legolas-themed Tumblr account is an official Lord of the Rings blog, however, another argument against Post+ could be this: Many content creators become popular for their gifsets, which essentially recreate a popular scene from a show or movie through animated frames. If those end up behind the paywall, says Heidi Howard Tandy of the firm Berger Singerman, that could introduce some issues.
“If there are minimal or no transformative aspects to the follow-up work, then commercializing something, whether on Tumblr or via Patreon or Kickstarter, etc., can increase one’s financial liability if the copyright-owner sues,” she said. “As an example, gifs that just have show dialogue on them are not necessarily transformative, but a gifset of fans in cosplay acting out a missing scene from a show or film likely would be.”
The onus is ultimately on copyright owners to take action against creators whose work is derived from their properties, said law professor Cathay Y. N. Smith, of the University of Montana. Paywalls “could attract the attention of copyright owners and potentially encourage copyright owners to more aggressively police and protect unauthorized derivatives or reproductions of their copyrighted works,” she said. And instead of putting up a fight if Disney comes knocking, “it is often easier—and certainly cheaper—for smaller creators to remove their works instead of going against a large corporate copyright owner such as Marvel or HBO.”
The downside to a copyright takedown or similar legal threat, of course, is that it could discourage users from sharing their content on Tumblr in the first place. It’s important to remember that Post+ is an optional program, however; no one belonging to any fandom or creating any kind of content is required to participate. But if someone is interested in testing out a way to turn all those reblogs into cash, doing this legal footwork may be a balm—or, perhaps, cause—for anxiety.
Sometimes, a little anxiety could be a good thing, especially where the law might be concerned. But instead of freaking out over Post+, Tumblr users may be better served listening to someone like Garcia: “The Post+ feature introduced by Tumblr has absolutely no impact whatsoever on whether a fan will be dinged for copyright infringement,” she said. “This is a misinterpretation of the law that appears to have spread among creators, as misinformation tends to do. Nothing to see here, folks.”
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