The perilous business of fanfiction

Finn Hekkala has been writing fanfiction on Tumblr for almost a decade. They only have one regret.

Set in various fictional universes, from the role-playing video game Disco Elysium to the popular TV show Supernatural, their fanfic tells original stories using familiar characters and worlds. Hekkala calls those Supernatural stories “a mild shame in my past.”

Hekkala isn’t just doing this for fun. Like many people on Tumblr, they’ve found a way to make money through fanfiction about everything from Marvel and DC heroes to Nintendo characters and Harry Potter. For Hekkala, that means offering readers the option to commission original fanfiction through their Tumblr blog LucilleSharpie or tip them via Ko-fi, which lets fans send creators small increments of money typically equal to the price of a cup of coffee.

But the only constant online is change. On July 22, Tumblr announced a new feature that experiments with something most of the internet is very familiar with: monetization. Like Patreon, Tumblr Post+ gives creators the ability to put some of their content behind a paywall.

“This seems irresponsible at best.”

That may sound like a good thing, but it cuts against the very nature of fanfic. Tumblr Post+ has garnered panicked reactions from fanfiction authors who fear that monetization will expose them to lawsuits and change the platform’s culture. One blog started the chant, “TUMBLR POST PLUS IS A WASTE OF YOUR MONEY AND SUBSCRIBING TO IT IS NOT WORTH THE RISK.” Others have repeated it in posts tagged with “Tumblr Post Plus” to flood the site with their message.

“At first, I was surprised,” Hekkala says. “Then I started to read more about it and I thought to myself, Wow, this seems irresponsible, at best.”

Hekkala isn’t alone in their concerns, concerns that lead to a lot of questions. Chief among them: Is it ever possible to legally make money by selling fiction based on someone else’s intellectual property? And how will the push toward monetization change a unique user platform like Tumblr?

Tumblr’s foray into monetization, currently available in the U.S and fully releasing later this fall, reveals an existential crisis facing the fanfic community with no easy answers and an endless supply of questions. Here’s an attempt to answer the most pressing ones.

What’s the problem with Tumblr Post+?

Best known for creating the famed fanfiction website Archive of Our Own (AO3), the Organization of Transformative Works (OTW) is a fan-led non-profit committed to preserving fanworks. In addition to this mission, OTW does legal advocacy where it defends fanworks from commercial exploitation, especially DMCA lawsuits (more on those below.) In August, following the Tumblr Post+ announcement, OTW responded with a statement:

“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.”

The statement addressed concerns felt by many fanfiction authors that Tumblr Post+ could expose them to intellectual property law. For Hekkala, reading the terms and conditions of Tumblr’s new policy only made matters worse.

“It seems like [Tumblr’s] intentionally protecting themselves against any legal backlash,” Hekkala says.

“Protecting themselves against any legal backlash.”

As with most social media platforms, anyone using Tumblr and Tumblr Post+ bear full legal responsibility for what they post. And by agreeing to the company’s terms of service, posters also agree to the terms and service of the payment platform, Stripe.

Following the outcry in July, Tumblr Staff expanded the original Tumblr+ announcement to ease the tensions about copyright. When Inverse reached out with questions, Tumblr representatives directed us to the same post.

It states: “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.”

That’s the key term, “fair use.”

Is fanfiction fair use?

It can be, but understanding fair use and the rights of creators is even less clear-cut on the internet than it is offline, especially for individuals like Hekkala and Tumblr user StanSugiura, who communicated with Inverse but declined to give their full name. StanSugiura started writing for fandoms at a young age and recalls putting disclaimers on their Yu-Gi-Oh fanfiction to avoid copyright complaints.

“I never was DMCA’d,” StanSuirga tells Inverse.

OTW strives to illuminate creators’ rights within copyright law. A piece of work is considered “fair use” when it transforms the “purpose and underlying message of the [original] work,” says Betsy Rosenblatt, the volunteer chair of OTW’s legal committee and a professor of law at the University of Tulsa. She says one key factor that courts consider is “whether your use is competing in the market with the underlying work.”

Competing in the market. That means competing for money or, possibly, engagement.

“People don’t get sued over fanfiction.”

Speaking to Inverse, Rosenblatt shed light on the reality of the legal ramifications faced by most authors of unmonetized fan fiction. If most fanfic is considered fair use and is not in true market competition with the copyright holder, what happens when the copyright holder targets a fan creator with a copyright complaint?

“People don’t get sued over fanfiction,” Rosenblatt says. “What happens instead is their fanworks get taken down under the Digital Millennium Copyright Act.”

The Digital Millennium Copyright Act (DMCA) of 1998 was designed to protect platforms and users by sending takedown notices when a copyright holder contends copyright infringement is occurring. Generally, platform owners then remove content to stop any further legal intervention, even if, ultimately, the content might be considered fair use.

Anyone whose work gets removed after a platform receives a DMCA takedown notification does have the option to fight back. They can send a counter-notification to the platform, making a case that the content does not constitute infringement. But, Rosenblatt adds, “when you counter notify, you know that you’re sort of opening yourself up to a possible lawsuit.”

That means creators, like platforms, are incentivized not to press the issue, especially in cases where a copyright holder has great legal and financial resources. In truth, the number of fanwork copyright lawsuits that make it to court is rare, but there’s one recent notable case.

Star Trek: Axanar

In 2015, a fan-made Star Trek film called Axanar crowdfunded a budget of nearly a million dollars. CBS and Paramount Pictures, who own the rights to Star Trek, swiftly sued the team behind Axanar for infringing on their copyright. The Axanar creators maintained the project was noncommercial and fell under fair use. At the same time, Paramount and CBS contended that such a relatively large-budget fan film would be in commercial competition with upcoming official Star Trek films and TV shows.

In 2017, after a U.S District Court judge ruled that Axanar was not protected under fair use, but the issue would still go to trial, Paramount Pictures and CBS settled its lawsuit with the creators of Axanar. The project was canceled, and CBS and Paramount released official restrictions for future Trek fan filmmakers, including limits on budget ($50,000), length (30 minutes), and distribution method (no physical media).

The story of Axanar reveals the risks of monetizing fan fiction, especially at the million-dollar crowdfunding level. Hekkala and StanSugiura, for their part, both remain surprised when they see fan culture grow so big that it meets real-world consequences. It just doesn’t feel natural for a majority of the Tumblr community, where fan creators’ work is, primarily, for that community.

“Fanwork communities are always a little bit underground,” says Hekkala.

Why monetize fanfiction?

It’s clear why Tumblr, a business fighting to survive, is eager to make its platform make money for creators. But, given the threat of DMCA takedowns, what’s in it for fan fiction authors? For Hekkala, writing is a side hustle while they work a steady main job, but for others, that’s not enough to keep going. StanSugiura has attempted to monetize their fanfiction on popular anime like Jojo’s Bizarre Adventure and SK8 the Infinity. It didn’t work out.

“I used to do Ko-fi fic commissions,” says StanSugiura. “But even with two people writing, it wasn’t sustainable. There’s not really many good resources for fic commissions like rates per hour or how to market yourself, so I eventually quit.”

“Fanwork communities are always a little bit underground.”

While fanfiction still isn’t a traditional career, the potential for mainstream success has risen over recent years. Franchises like 50 Shades of Grey or Anna Todd’s After began as online fan fiction and, after some labor to make them unimpeachably “transformative works” immune to claims of copyright infringement, catapulted into million-dollar hits. After began life as One Direction fan fiction and eventually became the most read book ever on Wattpad, with reportedly over one billion reads. It wound up a New York Times bestseller.

Like Tumblr, Wattpad has experimented with monetization and has ties with publishing companies to help springboard its users into becoming formally published authors. However, with its current programs and writing contests and its application and selection processes, Wattpad exercises control over whether users can monetize their content, decreasing the likelihood of DMCA takedowns. Joining WattPad’s “Paid Stories” program involves attesting to the platform that your content is “original and wholly owned by you.”

How other fanfiction sites handle monetization

While Wattpad is a writer’s website with a pipeline to publishing, AO3 is a fandom website that preserves fan writing, and the site’s creators want to keep it that way. AO3 forbids its users from attaching links to Patreon, Ko-fi, or other similar sites. And with Tumblr Post+, AO3 users will not be able to include links to work under Tumblr’s new paywall either.

For Rosenblatt and the OTW, monetization goes against the very principles of fan fiction.

“That changes the character of what you’re doing,” states Rosenblatt.

“We would call it a gift economy.”

Archive of Our Own was created out of a need for a noncommercial fan space run by fans.

“We would call it a gift economy in a way,” Rosenblatt says. “People are making things, and they’re making them for each other, and they’re sharing them with each other as a way of building community and being part of something.”

Early fanfic websites like Fanfiction.net and LiveJournal restricted explicit content and would routinely purge graphic stories to maintain advertisers. Archive of Our Own, meanwhile, has claimed a place on the internet where fanworks will be preserved.

What does this mean for Tumblr?

Despite the Tumblr staff’s insistence that Tumblr Post+ was not going to be dangerous for its participants, the Tumblr user base has continued reacting negatively to the whole concept of monetization. Some users even sent hate to the Post+ beta testers.

Hekkala understands the pushback, though they did not participate. It is characteristically un-Tumblr to participate in sponsorship and paid content.

“It just kind of feels like Tumblr is one of those websites where [influencer content and paid promotions] didn’t really happen,” Hekkala says. “If you tried to make a sponsored post, half the time people will just make fun of you.”

“Making money from something changes it somehow.”

Tumblr’s decision comes after a rough couple of years. Verizon sold Tumblr to Automattic, the company behind WordPress, for less than 3 million dollars in August 2019. After Tumblr banned explicit content back in 2018, the average number of unique monthly visitors to Tumblr’s website dipped by 21.2 percent from 2018 to 2019, according to data compiled by The Atlantic.

“The culture of Tumblr is everything, honestly,” StanSugiura says, “You have people blogging about their pets, people stealing bones, the Supernatural fans. It’s a lawless place, but it’s also a living archive. There’s no algorithm, just you and whoever you follow waiting for how staff will break the website even more.”

Hekkala especially appreciates Tumblr’s old internet values where anonymity rules. There is immense pressure on the internet when your real name is attached to everything you do.

Tumblr’s choice of introducing monetization 14 years after its inception strikes these fanfiction authors as a transparent cash grab, one profitable for the company rather than this subset of users. Fan culture thrives on the internet, but, more importantly, it has historically thrived offline too.

Rosenblatt of OTW puts it like this, “I absolutely understand the impulse to commercialize things when money is tight, right?... But I also think that there should be room in the world for doing things you love because you love them with other people. Making money from something even if it’s just on top of all that love changes it somehow.”