Spotlight on Legal Issues

Tumblr Post+ and You

We’ve been getting a lot of inquiries about tumblr’s recent announcement that it would be beta testing a feature it is calling “Post+,” which allows users to monetize posts by locking them to subscribers.

How does this interact with AO3 policies?

Don’t worry, nothing’s changing. As always, AO3 is dedicated to noncommercial fanworks, and has a policy against using the AO3 for commercial solicitation. So, linking to your blog or other social media from AO3 is fine. But linking to your Patreon, Ko-fi, Amazon sales page, or other commercial/fundraising site isn’t. Letting people know how to learn more about you is fine, but soliciting financial support isn’t. So how does this rule apply to tumblr? We know a lot of people link to their tumblr accounts from their AO3 profiles or works, and that’s fine! But linking specifically to subscriber-locked material on tumblr isn’t, and using AO3 to ask people to subscribe to a monetized tumblr account isn’t. And of course, AO3’s rules don’t govern what you do on other websites.

What about fan activities on tumblr and elsewhere?

We’ve also gotten questions and seen a lot of concern floating around about how tumblr’s Post+ program affects fans on tumblr and on the Internet more generally. The good news is…probably not much. We want to be clear that we have no relationship with tumblr, so we have no control over them or what they do. But here’s our take on things, as experienced lawyers.

Making and sharing fanworks has long been a predominantly noncommercial activity, and the OTW celebrates the community that has grown around that noncommercial approach. Also, the OTW’s position is that noncommercial, transformative fanworks are fair use under U.S. copyright law, which means that they do not infringe copyright. Importantly, as a matter of U.S. law, commerciality is one of a number of factors that courts consider in determining whether a use is fair use–it’s not the whole question. In other words, it is possible for noncommercial things to infringe copyright, and it is possible for commercial things not to. (In fact, all of the major U.S. cases holding that transformative works constitute fair use have been about commercial works.) Generally speaking, the more a work transforms the meaning, message, or purpose of the underlying work, the less a court would care that the work is commercial; and vice versa–the less transformative a work is, the more commerciality would matter.

But all of this talk of courts is very remote. As a practical matter, the Digital Millennium Copyright Act allows copyright holders (publishers, entertainment companies) to seek to have things taken down from the Internet if they think those things aren’t fair use, and we know that in general, copyright holders are more likely to seek takedowns for commercial things than for noncommercial things. That doesn’t mean those commercial things are necessarily infringing, but it does mean they’re more likely to be taken down.

The law does not give Internet platforms (like tumblr) much discretion in determining whether to take things down when they receive a valid request–basically, if a takedown request is valid and the work isn’t an obvious fair use, the platform has to take it down, as a matter of law. As a practical matter, then, it’s reasonable to expect that monetized tumblr posts are more likely to be the subject of takedown notices than non-monetized ones. But it doesn’t mean they’re automatically infringing or non-infringing. Fair use is always a case-by-case analysis.

To think about this differently, Internet platforms (including tumblr and YouTube and all the other ones) act as a form of insulation from lawsuits. That insulation happens in the context of DMCA takedown notices–rather than suing an individual poster, the copyright owner just asks the platform to take it down. It’s always up to users to decide what to post, and–in the very (very, very!) unlikely event that a copyright holder would decide to sue rather than just relying on the takedown process–users always bear the risk of being sued. If work gets taken down under the DMCA, users always have the opportunity to “counternotify” and ask for it to be put back up, with the understanding that having it put back up might make a lawsuit more likely. In other words, although platforms don’t “defend” their users, they do add layer of protection, in a way. Nothing about tumblr’s Post+ program changes any of that.

We hope this is helpful information. The OTW and AO3 are dedicated to maintaining space for noncommercial fanworks and fan culture, and we’ll continue to do that.