dragonlady7

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heyninja https://heyninja.tumblr.com/post/657504248809046016/i-think-the-take-away-right-now-is-that-there-is-a :

joshua-beeking https://joshua-beeking.tumblr.com/post/657499683325886464/well-that-got-stressfull-and-worrying-pretty :

three–rings https://three--rings.tumblr.com/post/657497314862202880/its-only-as-legal-as-the-last-court-case-and :

joshua-beeking https://joshua-beeking.tumblr.com/post/657476047140421632/first-i-want-to-make-it-clear-monetizing-tumblr :

First I want to make it clear: Monetizing Tumblr is indeed a TERRIBLE , TERRIBLE idea and a lawsuit waiting to happen.

However, I’ve seen a couple post that were oddly worded on the matter, stating that doing -any- money out of fanwork is illegal and it should be kept for Ko-Fi or Patreon.

…but my question is : There’s - MANY- artists all around the world making money out of fanworks via Patreon or Ko-Fi requests ( not directly selling fanart but rather doing art reward of fanarts and such things.), or plain commissions, and also via artist alley in conventions, and all of these are so far quite legal as far as I know?…so…what is exactly the difference? What makes it okay on Ko-Fi or Patreon but not on Tumblr?

It’s only as legal as the last court case. And fanart has no settled legal precedent. The question hinges on the nature of how “transformative” the fanart in question is, and, let’s face it, a lot of fanart, especially the kind that fills artist alleys, looks more like reproduction of other artist’s works than transformation into their own art. (Not including most fanart in transformative fandom spaces here, where it’s usually unique situations or styles or interpretations of characters. But I’ve worked enough conventions to know there’s a lot of straight up comic book copying out there.

In fact, Disney has gone after conventions for having this kind of art at their Artist Alleys. Multiple conventions I’m aware of have actually restricted artists from selling anything but original material, no licensed characters, because they are afraid of being sued. (Expressly by Disney over Marvel and Star Wars.) So the threat of this is Very Much out there. I know the only licensed character stuff allowed at some conventions has to be physical items made from purchased licensed material like licensed fabric, etc.

So yes, a lot of fan artists make money from fan art. But there’s nothing stopping anyone from DMCA-ing them or suing them for damages, especially when money is being made, ESPECIALLY when there’s a larger money-making operation to be targeted for lawsuits. Disney put pressure on these conventions, not individual artists. I’m also not sure about it, but Etsy clearly has new policies about licensed character stuff from what I’ve seen.

So Tumblr, in promoting that fan creators make money from fan works is inviting Disney in to sue them. And if you read the fine print, that means all liability will be passed on to you the artist.

So why isn’t it a problem on Patreon or Ko-fi? It is. It’s potentially exposing artists to legal problems there as well, though most people aren’t explicitly selling art so much as more nebulous “support for the artist.” And there aren’t like feeds of “Here’s Your Star Wars Content” as far as I know like there is on Tumblr. Most of the content on those platforms is locked behind paywalls, which, well, obviously we don’t know how tumblr + would look but apparently the posts include a preview.

A lot of people would say that fan artists have been pushing their luck for a long time, but it only tends to come up in specific situations, at certain conventions, on etsy, etc. As for now, a lot of conventions still turn a blind eye to the legal question and Patreon and Ko-fi aren’t enforcing anything about content on their sites (but I’m sure have lots of disclaimers that they aren’t liable.)

Fanfic writers tend to be more careful about this stuff than artists, because fanfic has a longer history and less opportunities for monetizing. Collective fanfic writer memory remembers when individual authors were getting Cease and Desist letters regularly. Before fan work was seen as a generally good thing for a franchise, an attitude which Disney is pretty much alone these days in not espousing.

That’s one of the functions of AO3 and the OTW, to claim the legal territory to argue for the legality of fan work. But the territory matters and it’s one thing to defend original stories that don’t make anyone any money and another thing to defend something someone is getting paid for in lieu of the copyright holder. We can argue the legality of fanfic till the cows come home, but try to publish your Captain America fanfic without changing the names and see how far you get selling it on Amazon.

Copyright law has a LOT of grey in it and all law relies heavily on precedent. If the wrong case goes in front of the wrong court, suddenly a precedent could threaten all fan work.

Of course, the OTW has lawyers whose mission is to protect creators’ rights. Tumblr isn’t going to fight. They will simply delete anything Disney has decided infringes on their rights and maybe kick off a user for it. Corporations learned from the Napster lawsuits that taking citizens to court for a few dollars of copyright violations was a losing game in terms of PR. But they WILL go after corporate entities and the people HOSTING the content.

TL;DR: For a couple decades now, fan content has relied on people not caring to pursue legal action against creators. But Disney, IN PARTICULAR, has been making more and more noise about cracking down and waving a red flag at a bull is a bad fucking idea for everyone.

Well that got stressfull and worrying pretty fast…

I mean on my side, my artwork is quite “ transformative” in the sense that it looks nothing like the original material… but as you say it doesn’t protect fanartist either, its just a “ everyone is doing it until it gets a legal precedent”.

I don’t sell at artist alley/conventions, I don’t sell merch or prints anymore, I only accept commissions and most times its fanworks requests, so I’m rather paid for my time/expertise than anything else. While for my patreon its only a “offer general support” kind of account.

But now I’m just stressed out its gonna bring me trouble one day… that’s why I am working on original material right now so that I have something people would want to offer support for that’s 100% legal , but let’s be frank for a second: original material has a terrible time getting support out there…

Before covid, it wouldn’t have been a problem since I had my full time job but now I rely exclusively on my art income and that worries me tremendously… if I stop accepting fanart commission, I would -not make it-…

…. now I don’t know what to do….

I think the take away right now is that there is a lot of room in transformative work, especially fan art, because of those who came before us. But there is a lot of reflexive defensiveness in fanfiction memory because of how things went with that branch of transformative work and especially how AO3 rules are structured regarding linking any money transaction anything from it (to safeguard ourselves and the AO3).

Nothing you’re doing is really crossing any major lines that is new territory, and nobody is really nervous about that status quo.

The nervousness is if people do the post+ business they might be inviting a host of problems and no one thinks Tumblr is going to have their backs on that. And there is worry that if post+ goes forward, it goes wrong in that way, THEN it might introduce a whole new host of problems/strictures for fanworks and patreons/ko-fi/commissions/etc

So I wouldn’t panic now, but just stay aware of how things progress if anything comes of it?

And another takeaway being don’t mess with the Mouse if you can! (Your picture was not posted)