Right now Tumblr is, as Tumblr often is, crazy. While the microblogging social media platform community has historically been resistant to most types of change, this latest kerfuffle is about a bigger change than a new website layout or unpopular sponsored content. It’s a matter of money and legal issues that could be involved.
In late 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 shell out money to view it. It’s a tiered system that gives content creators the ability to monetize their work on this otherwise free platform while offering special exclusives to subscribers; think of it like Patreon, but on Tumblr.
Part of the reason this is less of a feature removal and more of a fundamental shake-up is that, unlike Instagram or TikTok, Tumblr’s popularity has little off-platform benefit. The introduction of Post+ marked a shift in this dynamic, which almost immediately drew backlash from the platform’s user base. On August 6, 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 out of the platform, hoping to deprive the site of a significant amount of ad revenue. If Tumblr really wanted their money, they said, Post+ was the wrong way to get it.
Fanworks, such as fanfiction or fan art, by definition use characters and content from other published works. Creators are generally protected from lawsuits by copyright owners due to the concept of fair use. The definition of fair use – which means that the use does not constitute copyright infringement – is quite flexible, and the legal world continues to feel its limits when it comes to digital works in particular. But one of the main factors courts use to determine fair use is whether the work is transformative, thus differentiating it from the original work, which most fanwork is.
When it comes to money, things get complicated. With Post+ asking users to spend real money on stories and artwork they reblog, some Tumblr users believe the service could expose them to legal repercussions. Their thinking stems from the belief that, as a FanFare article explains, “a work is only transformative if it does not affect the potential market for the original work and is either a Complete re-imaging using only core concepts from the original or direct satire. When creators ask for money, does it affect the commercial market? Disgruntled Tumblrites argue yes.
To find out if Tumblr really opens 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. Essentially, what they had to say to Tumblr users was: don’t panic about being sued by corporations for your Steve Rogers fan art or Once upon a time fanfiction.
“You have pretty good First Amendment protection based on the argument that your posts are considered expressive or artistic works on [a Disney character]said Alexandra J. Roberts, a law professor at the University of New Hampshire. “People seeing your posts on Tumblr won’t be confused as to source or permission. If you start making money with your account, I don’t see that changing the math much.
Kristelia Garcia is even more convinced that Tumblr users will be safe under Post+. “This backlash [against the feature] may have merit on the basis of ‘content wants to be free’, but it has no basis in copyright law,” the University of Colorado law professor said. “Requirement [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 a mistaken one.
“If the use of a work protected by copyright (for example, Supernatural in a fan mash-up) qualifies for any, or some, but not necessarily all [stated] factors (to be weighed, subjectively, on a case-by-case basis, with no factor being determinative) – this may be “fair” and therefore not infringe copyright.
Even if no one thinks your Legolas-themed Tumblr account is an official account the 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 moving images. If these end up behind the paywall, says Heidi Howard Tandy of Berger Singerman, that could introduce some problems.
“If there are little or no transformative aspects to the follow-up work, then marketing something, whether on Tumblr or via Patreon or Kickstarter etc., can increase financial liability if the right holder author is suing,” she said. “For example, gifs that only have show dialogue aren’t necessarily transformative, but a set of cosplaying fans acting out a missing scene from a show or movie probably would be.”
The onus is ultimately on copyright owners to take action against creators whose work is derived from their properties, said University of Montana law professor Cathay YN Smith. Paywalls “could attract the attention of copyright owners and potentially encourage copyright owners to more aggressively control and protect unauthorized derivatives or reproductions of their copyrighted works “, she said. And instead of fighting if Disney knocks on the door, “it’s often easier – and certainly cheaper – for smaller creators to remove their work than to go against a big copyright owner.” ‘author like Marvel or HBO’.
The downside of a copyright takedown or similar legal threat, of course, is that it might 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 a fandom or creating any type of content is required to participate. But if anyone is interested in testing out a way to turn all those reblogs into money, doing that legal work can be a balm — or, perhaps, a cause — of anxiety.
Sometimes a little anxiety can be a good thing, especially when it comes to the law. But instead of freaking out over Post+, Tumblr users might be better served by hearing from someone like Garcia: “The Post+ feature introduced by Tumblr has absolutely no bearing on whether a fan will be convicted of copyright infringement,” she said. “This is a misinterpretation of the law that seems to have spread among creators, as misinformation tends to do. Nothing to do here, folks.
to listen ICYMI, Slate’s internet culture podcast; new episodes premiere every Wednesday and Saturday.