What if Tapas made a Fanworks genre?

[KytCordell]

A fanwork genre is a terrible idea and would be asking for legal problems.

Should Fanworks genre even be added?
No.

If added, will it be barred from spotlights in the "Popular" and "Trending" tabs?
It shouldn't be added.

If added, will you stay {on Tapas}?
Until Tapas gets sued/DMCA'd out of existence, sure.

Of note, Tapas has noted that fanworks are not eligible for ad revenue/monetary gains.
Because Tapastic probably has at least 1 laywer and knows better. The fact they even allow fanworks to exist on the platform is basically playing a game of appealing the assumption that original intellectual property (IP) owners likely don't care enough about some 16 year old kid's fandoodle comic to actually bring suit for copyright infringement.

All fanart and fanfiction is technically copyright infringement. However, the companies that own large IPs usually know better than to pursue some kid's Tumblr blog. For one, it isn't great PR to sue or penalize your own fans for creating fanwork. Two, your average fanartist isn't interfering with their market shares or profit in a way that justifies the cost of pursuing it. A freelancer with like 2k followers selling anime pins is likely not making enough money to even cover the front end fees associated with a lawsuit. At most, a DMCA takedown is filed with the site owner. Major companies gain nothing by telling people they cannot produce fanwork. For the most part, it's free advertising and promotion.

However, they absolutely can and do have the legal right to make people stop producing fanwork or using their characters in any way. The more you're explicitly advertising the fact you're profiting from their IP the more likely they are going to come after you. Fanwork can exist as long as it isn't making too much money. The idea that you would actively draw attention to the fact you allow copyright infringement on your platform isn't the best idea. Most likely, nothing will happen. But in the event it does, having a "fanwork genre" is explicit acknowledgment that you are facilitating and encouraging copyright infringement.

References
Zambito v. Paramount Pictures Corp. 613 F. Supp. 1107 (E.D.N.Y. 1985)
Walt Disney Production v. Air Pirates, 581 F.2d 751.

Here are just a few examples of tests used in determining whether a work infringes on a copyrighted character. While fictional characters are not per se illegal in the Copyright Act, common law had established that you cannot used copyrighted and trademarked characters.

For clarification, infringement does not require financial gain. The mere act of creating a "copy" is enough. I'm not going to go into the definition and common law background for what constitutes a copy, but just know that all fanwork is technically infringement. The IP holders just have no incentive to pursue it usually.

[nostalgicroxas]

I agree. I also know the problem also occurs if you're talking about "copyright law in the USA" or overseas in other countries. Not to mention the country's community opinion on fanworks.

You do bring up points about DMCA takedowns, which is likely the least thing that would be done to Tapas as whole. Although it could be possible that Tapas would be required to front information of the user doing the IP infringement, and the take down notice of C&D would be sent to the user and no overall reprimand(ation?) would befall the website

I do think the idea of including a Spin-Offs genre would be overall interesting for the Tapas community and I wonder how many would enjoy perusing it's contents.. Since it's name doesn't readily lend itself to fanworks.

That does remind me of how Finding Nemo is like, currently, the most ripped off movie in history/merchandise lol

[KytCordell]

If you use content owned by any American company, you're going to be implicating U.S. copyright law. It doesn't matter what you call the category. Any idiot could look at the things it comprises and that would be evidence enough that it is still a fanwork category.

Anyhow, whether or not the platform is liable for infringement depends on whether they present themselves as merely a hosting platform or a content curation platform. The former means they won't be liable as long as they deal with any obvious actual knowledge of violations. The latter means they're absolutely fucked.

Guess which category creating any kind of "fanwork" category puts you in?

[KytCordell]

This is pretty much it. They could ban fanworks, but once a site gets large enough, it's very difficult to police this. Look at the situation with YouTube or Twitter lol. Basically, the best option is to not cause a backlash by saying nothing and ignoring anything you do see. You certainly wouldn't do something as moronic as create a category specifically advertising all that yummy infringement you're soliciting.

[nostalgicroxas]

Indeed. It's oddly the same sort of conversation you have with artists at anime conventions who want to riot and freak out that they can't sell their fanart that makes them bank $$$ in certain areas of the shops / or at all at the convention (depending on the rules).

It's also an odd catch-22: two people who make Pokémon fanart, one of whom is given a C&D order, while the other is ignored, do you like it or not, The Pokémon Co.? Same thing with Voltron fanart. Sites like Etsy do C&D across the site, but if you search up anything relating to Voltron, you can still find lots of it on the website, so they didn't remove all artist's listings in relation to it- and that's just etsy on it's own grounds to try and stop fanart on their site. It's not consistent.

[KytCordell]

It isn't about "liking" it or not. That's a very naive way to think about it. The outcomes are profit and incentives driven. It isn't going to be consistent. If something is reported, the sharing platform/host is liable if they do not respond. They aren't proactively going around getting rid of it either. It works to the benefit of both the platform and the IP owners to selective only hit users that pose some kind of threat or are too visible.

This is all about visibility and money. So, no, Tapas should not make itself a known copyright infringement hub/solicitor. Being a known infringement hub that monetizes said infringement is about as bad as it gets.

[skicoak]

Anyhow, whether or not the platform is liable for infringement depends on whether they present themselves as merely a hosting platform or a content curation platform. The former means they won't be liable as long as they deal with any obvious actual knowledge of violations. The latter means they're absolutely fucked.

Let's ignore the direct comments made by Tapas management that would implicate them for a second then.

Wouldn't the existence of something like Creator Spotlight, or some such contests, having regulations against fanwork be a clear and actionable statement of their legal status?

[KytCordell]

I actually have no idea what comments they have made. I hope it isn't too incriminating lol. Again, nothing will likely come of it either way because webcomics for the most part don't have enough revenue or meaningful visibility to even matter.

Creator spotlight as far as I know features original works. Having regulations against fanwork would be evidence in their favor that they are not supporting infringement in the event of a problem arising.

[skicoak]

I actually have no idea what comments they have made. I hope it isn't too incriminating lol.

They have stated the will not activate ad share revenue on fanworks. It's an open acknowledgment of their continued existence.

Again, nothing will likely come of it either way because webcomics for the most part don't have enough revenue or meaningful visibility to even matter.

That's ignoring the fact Apple could ramp up the concern by requiring a vigilance from the site to remain in the app store.

[KytCordell]

That's always a possibility. I'm just saying that Disney probably isn't going to be suing Tapastic anytime soon lol. As for the app store, I don't know how stringent Apple is about the copyright/fanwork issue. I know they're strict about the mature content issue because people are pearl-clutching about that one.

[nostalgicroxas]

nothing will likely come of it either way because webcomics for the most part don't have enough revenue or meaningful visibility to even matter.

That's highly dependent on many factors. Like I mentioned in passing before, to write fanfic for the Riders of Pern fandom, you had a set of rules you were required to follow to play in that sandbox without the creator of the Pern world coming down on you.
And Disney's acquisition of STAR WARS basically threw out 30~ years of fan community built canon, only to later say "well THESE one's here we approve of, but not these ones", as a way to appease the SW fandom.
And Anne Rice is known to come down with lawyers against anyone who depicts her characters in a way that isn't just right. There's also writers, I think it's JK Rowling among others, who'll come down against fans for trying to include any kind of romantic love outside of cis in their fandom.
Some fandoms, just... have rules of the sandbox. And some of them, their rule is just "don't publish this fanfic anywhere online".

[skicoak]

I'm just saying that Disney probably isn't going to be suing Tapastic anytime soon lol.

It doesn't have to be about aggressive litigation. Disney is slowly choking off intellectual infringement in artist alleys at comic conventions by putting the burden on the promoters to crack down on it. The same tactic could easily apply here since Apple requires site mechanisms for handling these issues.

[nostalgicroxas]

Of note on that topic, it's not just Disney. It's distributor companies like Funimation as well. The only way for Artist Alley to still exist in some cases was to remove them from the main room, where they shared space with the official merchandise sellers. It's happened across pretty much every single convention that is sponsored by Funimation, which is essentially all of the anime ones in the US. And any fanwork found in the main hall is told to be taken down, not sold, and/or removed.

[DogshitJay]

I was a reader for ages (years maybe?) before I even considered becoming a creator here, and still use Tapas as one of my primary reading sites, so I tend to be speaking from that perspective more than as a creator. (plus I think creator concerns have been well documented already). I personally would lose interest in Tapas as a whole if there was a lot of fan-fiction here. It's just not remotely what I come to Tapas for. I don't think fan-fiction is bad or anything, and I read it elsewhere, but it's not in line with how I perceive Tapas as a consumer, and I think it would impact the legitimacy of the site in terms of original works to me. Maybe this isn't the space for a "customer" perspective, but I'm tossing in my two cent as someone who spends a looooooot of cents here.
Essentially, whatever the staff does, I hope it suppresses fanfiction on here.

[silverraven0]

Oh wow, never thought this will turns into a big discussion.

So anyway,

• Should Fanworks genre even be added?

My answer is yes, but when I suggest the genre, I have never thought that they’ll be on the top list, and was subjected to be a side genre (i kind of s*ck at explaining this but I hope you got it?) and thought that a warning will be issued and the ad rev will be locked automatically somehow?

• If added, will it be barred from spotlights in the "Popular" and "Trending" tabs?

Most likely yes, but if they really do made a different tab for fan work, I thought it would be acceptable, thought I believe a lot of creators will be add odds with this idea. But a full staff picked trending and popular with other og works? No.

• If added, will you stay {on Tapas}?

Yes.

• Of note, Tapas has noted that fanworks are not eligible for ad revenue/monetary gains.

Yep, I’ve known it when Michael has stated multiple times In the forum that yes, the support is eligible since there’s nothing really wrong with peoples want to throw money to shows appreciation of the fan work, and I think that’s fair too, but he also stated multiple times that NO, they can’t activate ad revenue, and if they wanted to do an og works, it’s best that they made a separate account for that og works.

The reasons I even suggested to have fan comic and fan fiction as a genre (or shadow genre as it’s called? Idk) because there’s already a lot of fan creation on tapas, amd holy s*it if a lot of peoples didn’t realize they’re fan works and not a real one (and as embarrassing as it sounds, that’s me once upon a time ;v; ), and it was so they could be grouped together.

They’re already there and there’s nothing that can prevent that from happening, so why don’t just put it all together? I thought.

Well, take it with a grain of salt, people. (*´・ｖ・)

[nostalgicroxas]

I agree with you. The fanworks are already here, and for those who don't know the fandom, it'll be handy for those people. And it'll be good for organization.

But I do think having it as a checkbox or secondary genre could work. Maybe as a flag or something, so it's not even part of the genre coding.

[DarJodo]

Tapas has zero tolerance for copyright infringement. Once it is brought to their attention they remove it and the offending account at once. No warning, no appeals process, and probably not much in the way of verification. Apparently you can just say "Hey that is my stuff" and they will take you at your word.

[KytCordell]

I'm not really active in the con scene, so I was not aware of this development. And yes, the same tactic could technically be applied by Apple. In general, allowing fanwork is a bad idea to begin with. If these circumstances you mention are true, then it's an even worse idea than I'd originally believed.

[KytCordell]

It's literally putting a target on the platform and serves as an open admission of liability. The point isn't that the fancomics exist. Non original IP floats around all the time on Youtube and often doesn't get taken down. Other times it's immediately flagged and removed. The point is that making a genre or ANY sort of conscious identifier is Tapastic saying, "here is a box you can check that allows us to know you are in fact infringing copyright."

[KytCordell]

It's not about whether or not it's already "there." It's about liability and acknowledgment and curation. Making it a category is an open admission that you are not only (1) aware that copyright infringing content exists on your platform, (2) you are curating it instead of removing it.

The more attention is drawn to fanwork being non-original, the more likely Tapastic opens itself up to liability and thus has to take measures to ACTIVELY remove the infringing content and possibly ban people.