on swindles and fandoms
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cesperanza's post about Multi-Level Marketing and monetizing fandom is still going around, and I keep wanting to put mostly-side-issue long comments on other people's posts, so here they are here instead.
I commented on the original post about how I felt like the correct comparison was not MLMs to fandom patreons (etc), but pyramid schemes to predatory publishers. The people who tell you how your novel will be a best-seller now that they've discovered your genius, and all you have to do is give them thousands of dollars for them to ship you thousands of copies of a badly-edited, badly-bound book for you to sell to your friends and family, they're the ones coercing writers to destroy their own social networks for other people's profit.
And in a lot of ways, the fandom monetizing methods actually inoculate against this - a member of a fan community who know about things like patreon and crowdfunding and kindle originals and legit self-publishing, who is friendly with other pro authors, who knows the histories of other people who've made the transitions and can chat with other people in the process and has things like beta-readers and knows that there's more to getting readers than just writing a thing - that person is way less likely to fall victim to a predatory publisher.
There's a lot of people misunderstanding MLMs in this discussion, too. Multi-Level Marketing has come to be used as a euphemism/synonym for pyramid scheme because calling something a pyramid scheme in the press is technically defamatory in the US unless you can prove it is one by the legal definition. But not all MLMs are pyramid schemes, only most of them (and nearly all of the trendy flash-in-the-pan ones).
An MLM is an organization where people recruit new people into the organization, and they get a percentage of their recruits' revenues in exchange.
In a classic pyramid scheme, this is literally all that happens. Person A says, "If you join and give me a $5 membership fee, you can recruit new people, and they'll give you their $5, and everyone they recruit will give you a percent of their $5, and before you know it you'll have hundreds coming in every day from new recruits far down the line, just like I do!" In that kind of scheme, as soon as new membership fees stop flowing in, the entire thing collapses.
Pyramid schemes are illegal in the US, but it's not the MLM structure that illegal, it's the fact that the main revenue source is the new member fees, rather than any actual value or profit.
There are non-pyramid scheme, reasonably legit MLMs, and the difference is: in a non-pyramid-scheme MLM, there is actually value being provided in exchange for the money that flows up, preferably at all levels. Even if no new sellers were recruited, and people just sold product, everybody would still be making money, and the organization would survive.
Lately, the most obvious way to tell the difference is that the more legit ones like Avon don't require new sellers to go into debt to start up - you sell from a catalog, or you don't have to pay for product unless it's sold, and you don't have to pay large fees for training or membership just to start selling - the training/set-up is free or a nominal cost for materials and travel. Also, in a sustainable MLM, the upper-level sellers are doing pretty intense mentoring/training/monitoring/support of the people under them, and are actually earning a lot of the money that flows up, because they want the people below them to succeed - it's a different structure but the same effect as money flowing up to management in a more standard structure. And nobody makes any money at all if the product doesn't sell, so usually there's incentive for the product to be something people want at a reasonable markup, and sellers can actually sell it.
There's still more risk to sellers and less chance of making a living wage, and often a fair amount of pressure tactics, but it's a reasonably workable business model long-term, and if people aren't making money, they can just quit with no big loss. (Really, it's just a more formalized version of how small home businesses sell by word-of-mouth in expanding social circles.) There was a recent Buzzfeed article about what Avon is up to lately that gives a pretty good view of how a non-scam MLM functions.
In a pyramid scheme, new sellers have to put up money up front, often for expensive training or something and are also often required to buy a very large amount of product on spec, which they can't return if they don't sell it. (This is very similar to the process of being "published" by a predatory publisher, and not essential to the MLM aspect.) This puts sellers under a huge amount of pressure just to make back their initial investment (and the vast majority of them don't), and generally forces people on higher levels to focus more on recruiting new sellers than mentoring existing ones, because nobody makes money on selling no matter how much mentoring is going on, because that's not the point of the thing, and since that's not the point, the product is probably shit and nobody can sell it anyway. (Often it's something like dietary supplements that's a swindle no matter how it's sold.) It's also why it's uniquely damaging to social relationships: you're not just selling to your friends, you're being coerced into actively swindling your friends, and usually before you've been in the thing for very long, you realize that, at some level, but you've invested so much you can't get out. It's poison all around.
MLMs are legal; pyramid schemes aren't. So the pyramid schemes have to have just enough of a 'product' to pretend they're a real MLM long enough to take the money and run, which makes them harder to talk people out of. And the problem isn't so much the MLM structure as that the whole thing's a swindle.
And we certainly have swindles in monetized fandom! Any method of making money can be turned into a swindle, by someone who wants to swindle people. We can probably all name several exciting chapters in the history of online fandom when fan swindlers have succeeded, for a little while at least.
And any method of making money can feel like a swindle if the people involved in it are just really bad at it (which also applies to a lot of v. small publishers who look predatory through sheer incompetence, but aren't actually making any money for themselves either.) We can all name situations like that too, probably.
And any profit-prioritizing corporation under late-stage capitalism is, at some level, built on a swindle, because our entire global economic system is currently built on a series of stacked swindles. So there's some stuff that does make me side-eye things like Patreon and Kofi, and what they try to promise people, even as fandom uses them more and more, but that's really pretty ancillary to the question of MLMs. And even at their worst, they don't require the initial outlay of capital to chain you to the swindle, or pressure you to pressure your friends to put themselves into the same level of debt as you.
So I'm still way more worried about predatory publishers going 'ooh, girls are selling fanfic now! Our fandom market's not limited to boys with no social support and WoW-with-the-numbers-filed-off epics!' or about homegrown swindles and for-pay fanfic sites than I am about people using crowdfunding or commissions to fill out that last couple of hundred dollars of rent. The real, ongoing problem with monetizing that destroys relationships is large corporations recruiting people to swindle other people for them, not individual fans looking for compensation for labor.
(The question of compensation for creative labor in general is an entirely different one.) (as is the question that's silently threaded through this whole discussions about helping needy people via pure charity vs. under a smokescreen of nominal 'earned payment', and whether that choice should be up to the helper or the helped.)(as is the question of to what extent patreon and company are themselves exploiting the fans who use them.)
(one of my cousins over christmas seemed to think I was anticapitalist or something, dunno what gave him that impression.)
cesperanza's post about Multi-Level Marketing and monetizing fandom is still going around, and I keep wanting to put mostly-side-issue long comments on other people's posts, so here they are here instead.I commented on the original post about how I felt like the correct comparison was not MLMs to fandom patreons (etc), but pyramid schemes to predatory publishers. The people who tell you how your novel will be a best-seller now that they've discovered your genius, and all you have to do is give them thousands of dollars for them to ship you thousands of copies of a badly-edited, badly-bound book for you to sell to your friends and family, they're the ones coercing writers to destroy their own social networks for other people's profit.
And in a lot of ways, the fandom monetizing methods actually inoculate against this - a member of a fan community who know about things like patreon and crowdfunding and kindle originals and legit self-publishing, who is friendly with other pro authors, who knows the histories of other people who've made the transitions and can chat with other people in the process and has things like beta-readers and knows that there's more to getting readers than just writing a thing - that person is way less likely to fall victim to a predatory publisher.
There's a lot of people misunderstanding MLMs in this discussion, too. Multi-Level Marketing has come to be used as a euphemism/synonym for pyramid scheme because calling something a pyramid scheme in the press is technically defamatory in the US unless you can prove it is one by the legal definition. But not all MLMs are pyramid schemes, only most of them (and nearly all of the trendy flash-in-the-pan ones).
An MLM is an organization where people recruit new people into the organization, and they get a percentage of their recruits' revenues in exchange.
In a classic pyramid scheme, this is literally all that happens. Person A says, "If you join and give me a $5 membership fee, you can recruit new people, and they'll give you their $5, and everyone they recruit will give you a percent of their $5, and before you know it you'll have hundreds coming in every day from new recruits far down the line, just like I do!" In that kind of scheme, as soon as new membership fees stop flowing in, the entire thing collapses.
Pyramid schemes are illegal in the US, but it's not the MLM structure that illegal, it's the fact that the main revenue source is the new member fees, rather than any actual value or profit.
There are non-pyramid scheme, reasonably legit MLMs, and the difference is: in a non-pyramid-scheme MLM, there is actually value being provided in exchange for the money that flows up, preferably at all levels. Even if no new sellers were recruited, and people just sold product, everybody would still be making money, and the organization would survive.
Lately, the most obvious way to tell the difference is that the more legit ones like Avon don't require new sellers to go into debt to start up - you sell from a catalog, or you don't have to pay for product unless it's sold, and you don't have to pay large fees for training or membership just to start selling - the training/set-up is free or a nominal cost for materials and travel. Also, in a sustainable MLM, the upper-level sellers are doing pretty intense mentoring/training/monitoring/support of the people under them, and are actually earning a lot of the money that flows up, because they want the people below them to succeed - it's a different structure but the same effect as money flowing up to management in a more standard structure. And nobody makes any money at all if the product doesn't sell, so usually there's incentive for the product to be something people want at a reasonable markup, and sellers can actually sell it.
There's still more risk to sellers and less chance of making a living wage, and often a fair amount of pressure tactics, but it's a reasonably workable business model long-term, and if people aren't making money, they can just quit with no big loss. (Really, it's just a more formalized version of how small home businesses sell by word-of-mouth in expanding social circles.) There was a recent Buzzfeed article about what Avon is up to lately that gives a pretty good view of how a non-scam MLM functions.
In a pyramid scheme, new sellers have to put up money up front, often for expensive training or something and are also often required to buy a very large amount of product on spec, which they can't return if they don't sell it. (This is very similar to the process of being "published" by a predatory publisher, and not essential to the MLM aspect.) This puts sellers under a huge amount of pressure just to make back their initial investment (and the vast majority of them don't), and generally forces people on higher levels to focus more on recruiting new sellers than mentoring existing ones, because nobody makes money on selling no matter how much mentoring is going on, because that's not the point of the thing, and since that's not the point, the product is probably shit and nobody can sell it anyway. (Often it's something like dietary supplements that's a swindle no matter how it's sold.) It's also why it's uniquely damaging to social relationships: you're not just selling to your friends, you're being coerced into actively swindling your friends, and usually before you've been in the thing for very long, you realize that, at some level, but you've invested so much you can't get out. It's poison all around.
MLMs are legal; pyramid schemes aren't. So the pyramid schemes have to have just enough of a 'product' to pretend they're a real MLM long enough to take the money and run, which makes them harder to talk people out of. And the problem isn't so much the MLM structure as that the whole thing's a swindle.
And we certainly have swindles in monetized fandom! Any method of making money can be turned into a swindle, by someone who wants to swindle people. We can probably all name several exciting chapters in the history of online fandom when fan swindlers have succeeded, for a little while at least.
And any method of making money can feel like a swindle if the people involved in it are just really bad at it (which also applies to a lot of v. small publishers who look predatory through sheer incompetence, but aren't actually making any money for themselves either.) We can all name situations like that too, probably.
And any profit-prioritizing corporation under late-stage capitalism is, at some level, built on a swindle, because our entire global economic system is currently built on a series of stacked swindles. So there's some stuff that does make me side-eye things like Patreon and Kofi, and what they try to promise people, even as fandom uses them more and more, but that's really pretty ancillary to the question of MLMs. And even at their worst, they don't require the initial outlay of capital to chain you to the swindle, or pressure you to pressure your friends to put themselves into the same level of debt as you.
So I'm still way more worried about predatory publishers going 'ooh, girls are selling fanfic now! Our fandom market's not limited to boys with no social support and WoW-with-the-numbers-filed-off epics!' or about homegrown swindles and for-pay fanfic sites than I am about people using crowdfunding or commissions to fill out that last couple of hundred dollars of rent. The real, ongoing problem with monetizing that destroys relationships is large corporations recruiting people to swindle other people for them, not individual fans looking for compensation for labor.
(The question of compensation for creative labor in general is an entirely different one.) (as is the question that's silently threaded through this whole discussions about helping needy people via pure charity vs. under a smokescreen of nominal 'earned payment', and whether that choice should be up to the helper or the helped.)(as is the question of to what extent patreon and company are themselves exploiting the fans who use them.)
(one of my cousins over christmas seemed to think I was anticapitalist or something, dunno what gave him that impression.)
no subject
Imho there's a point which keeps getting lost in these conversations, one I've seen maybe touched on once or twice, but nothing in-depth. Fanworks are transformative, yes, absolutely. That does not mean fans have the legal right to sell them. "Transformative use" is currently a fair-use exception under copyright law only. It does not change the fact that it still infringes on the original creator's right to profit exclusively from their work.
The AO3 won't allow fan creators to link to their Patreons, Kofis, or other fundraising sites, because the OTW can't afford to be seen as endorsing fan creators profiting off of IP infringement. Period. It's not just copyright infringement the OTW has to worry about either; there's also trademark infringement, which is a different (and imho scarier) kettle of fish. There's a reason why most popular genre works (e.g. Harry Potter, MCU, DCEU) are trademarked these days as well.
I've seen what can happen when fans try to sell their fanworks outside of fandom spaces. I spent a lot of time on Etsy forums in the past. I was surprised by the number of shop owners, many of whom were fan creators selling fannish works, who came to the forums to complain about items removed from their shops for IP infringement. If they received enough DMCA infringement notices their shop was closed permanently and they were banned from selling on Etsy again. They didn't get much sympathy on the Etsy forums, either. They were seen as direct competitors by Etsy sellers who sold their own original (IP-protected) work.
The only ways for fanworks not to infringe are 1) transform works from the public domain, 2) transform IP-protected works to the point that the source is unrecognizable (by that point, it's its own original work anyway), or 3) obtain permission / purchase a license from the IP holder to sell, which can cost obscene amounts of $$$ and/or meet stringent requirements (why hello there Disney). Most fan sellers who were dinged, sold unlicensed fanworks that were instantly recognizable and were therefore a target. (Which was and is a shame, because there are some really creative works, stuff you could never get as "official" merch.) No one can predict whether IP holders will look the other way re fanworks, or pounce on a seller. My guess is that it depends on a) how much profit the IP holder stands to lose, or b) when they want to set an example. (Disney is notorious for this.) A lot of fan creators don't know any of this, and they get blind-sided.
Current IP laws are ridiculous and weighted far too heavily on the side of IP holders (which more and more are corporations, not individuals). They need to be replaced by fair and reasonable laws that recognize and appreciate the value of transformative works and the public domain. Until that happens, fans can't ignore the real legal consequences of selling infringing works.
no subject
Non-commercial is one of several factors that can be weighed in a court case - which means it certainly can't *hurt* if you're trying to cover yourself - but it is not, by itself, a protection. For-profit transformative works can be non-infringing - in fact, nearly all of the landmark court cases establishing that transformativity is fair use were built on for-profit works (because non-profit ones don't usually have the money to go to court.) There's some question as to whether non-commercial status would mean anything at all if a case went to court today, in fact.
Because that's the other thing - there is no official, reliable set of rules as to what counts as fair use and what doesn't. There's some guidelines that some judges have used, but the only way to know for sure is to do it, get sued, and then take it to court. Everybody on both sides who has the resources to take fanfic to court is shit-scared that if they do, the judge will set a new precedent favoring the other side, so everybody lately has just been throwing around C&Ds and DMCA takedowns and then settling out of court if the other side doesn't back down.
So we don't really have a firm answer on whether noncommercial fanfic is officially okay, or if it's more or less okay than for-profit fanfic. (There's even a tiny chance that an argument could be won that for-profit work dilutes the market less than giving it away for free, especially if you were selling it via something like a members-only site, and effect on the market another one of the factors that is usually considered.)
Trademark law is another entire set of completely different factors and issues, and it's far more likely to hit merch and art sales than fanfic. That comes down almost entirely to whether a consumer is likely to confuse unofficial work with official work, and commercial use has almost no bearing on it. But, like copyright, it's also down to 'take it to court, see what happens' for any individual case, and like copyright, very few transformative cases make it to court, because nobody wants to risk getting the wrong precedent.
The vast majority of how IP infringement actually plays out on the internet is IP owners and website owners coming to their own arrangements that do end-runs around laws that make no sense in the context of how people use the internet.
The question of corporate website owners caving to DMCA requests is almost entirely separate from the question of theoretical legality, because if you're selling on, say, Etsy, Etsy doesn't want to piss off the big media companies whether they think they could win the lawsuit or not. If they were selling on their own website only, it's entirely likely that they could respond to the DMCA request with "Nuts to you!" and get away with it 100%. DMCA bullshit is its own can of injust worms (and part of why websites like Dreamwidth and AO3 - which have official policies of 'nuts to the DMCA, we'll see you in court' - are so important to fandom.) Websites like Etsy will hide behind legality because that's harder to argue with than "we don't want to pay staff to deal with DMCA bullshit" or "we aren't interested in spending our money to defend our creators' rights." But, again, whether something is commercial or not has almost no bearing as to whether it's legally vulnerable to a DMCA takedown (although making a huge profit will probably increase the chance that somebody will bother to send you one.)
I actually think a large part of why there have been far fewer C&Ds aimed at fanfiction in the past ten years - and a concomitant increase in public awareness and approval of fanfiction - is that major copyright owners are aware that OTW exists and is ready to provide legal support to anyone who wants to fight a C&D, and the C&D system of suppression relies entirely on people being too poor, scared, or unaware to try to fight in court.
That said, I am constantly amazed at the people who appear to have no idea that they could be running up against the edges of copyright law. But that's another thing that fanfic fandom seems to inoculate against better than communities like Etsy or the corner of fanart that comes out of boy-fandom rather than transformative fandom - most people trying to make money on this corner of fandom are sufficiently aware of the state of the law that they avoid the obvious pitfalls like depending on sales through sites that don't defend against DMCA takedowns. And the methods that are currently common often set up 'plausible deniability' screens like a Patreon that is technically for original work, even though nearly all of what they actually produce is fanwork, or taking 'commissions' or 'donations' for fanfic that they then post publically, so the finished product isn't being sold in a way that would make it easily arguable as commercial.
no subject
Has anyone tried posting fanfic of Anne Rice's works to AO3 yet? Now there's an author whose wishes regarding her precious creations I have absolutely NO respect for.
ETA: Huh. Apparently people have. Vampire Chronicles - Anne Rice is a category. Glad people stopped caving in to that prima dona.
no subject
Pern is pretty much anything goes now, too! Tbh I'm having trouble coming up with any fandoms, as it currently stands, that are extra-dangerous for fanfic posting in terms of PTB risk, except maybe some self-pub ones with very small readerships.
no subject
Of course, corporations would love to sue site hosts instead of random users; users are broke. The DMCA was created so that Warner Bros can't sue Wordpress over someone's Harry Potter screencaps in a blog post.
(Cue long rant about the broken-ness of DMCA and how false accusations almost never result in penalties, and have never resulted in penalties for the website that knowingly cooperates with false takedown requests.)
I don't think there's ever been a copyright lawsuit over free fanfic. The closest is the Chelsea Quinn Yarbro thing, which involved a C&D and a contracted settlement, but not a legal ruling infringement. (Except maybe the settlement stipulated a claim of infringement, but that's definitely not the same as a judge deciding it happened.)
Yarbro, Rice, and Hamilton all get Very Very Upset about people writing fic about their imaginary vampire boyfriends.
no subject
I've been super tempted for awhile to write a novel where the Comte de St. Germain is a vampire. Because he's a real (fascinating) historical personage that she doesn't own any copyright to whatsoever, any more than she does to the concept of vampires.
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no subject
She had bad legal advice if she was told she had to aggressively pursue copyright infringement or lose her copyrights, because that's utter bullshit. And she was miserable because of all the time and money spent pursuing her unnecessary vendetta against fans? Boo-hoo, QQ more! She could have not done it. I'll bet her former fans were pretty miserable, too--bet they never bought or read or recommended anything by Yarbro again.
So, if any old fans out there have a copy of The Holmesian Federation, issue #8, squirreled away, could you do the rest of us a favor and scan it and post it on the Internet? Would signal boost.
no subject