Business Musings: Patreon, Copyright, And Personal Choice

On February 9, The Passive Voice published a piece titled “The Beginning of the End for Patreon.” [link] As he so often does, the Passive Guy linked to another blog post, and then did his own riff on that post.

The other blog post is worth reading. It’s by Nate Hoffelder of The Digital Reader, and discusses Patreon’s viability.

As the Passive Guy investigated the material in Nate’s piece, however, the Passive Guy stumbled across Patreon’s Terms of Use. Apparently, PG, a lawyer, hadn’t read them before.

Patreon’s Terms of Use has a possible rights grab buried in them. This is the relevant passage:

By posting content to Patreon you grant us a royalty-free, perpetual, irrevocable, non-exclusive, sublicensable, worldwide license to use, reproduce, distribute, perform, publicly display or prepare derivative works of your content. The purpose of this license is to allow us to operate Patreon, promote Patreon and promote your content on Patreon. We are not trying to steal your content or use it in an exploitative way.

Now realize that contracts need to be read in their entirety, and this is just one paragraph. But the first sentence of this paragraph gave me pause when I first read it years ago, and clearly it upset PG as well.

That sentence at the end of the paragraph? Technically, it’s not theft if you sign away the copyright. So that “steal” thing is kind of a misdirection.

And here’s another point: Even though the FAQ and Patreon’s home page contradict the rights grab, the grab is in the Terms of Use. The reassurances aren’t.

Since I’ve worked in publishing for decades, I learned the difference between language in a contract—which the Terms of Use is, whether we like it or not—and reassurances from the company. Language in a contract can be enforced relatively easily. Reassurances are usually just that: a nice pat on the head accompanied by a don’t worry your pretty little head, sweetie.

Shortly thereafter, Alicia Butcher Ehrhardt asked me in my comments section if I’d seen the Patreon Terms of Use. If so, why was I still using Patreon? (I use Alicia’s name here, since she mentions this in the comments to a different Passive Voice article about Patreon.) I answered quickly—I was in the middle of all kinds of deadlines—and told her the truth without really explaining it well.

I saw that possible rights grab the day I logged onto Patreon and started my account. And, at that moment, decided not to ever filter any fiction through Patreon’s site.

I have very different attitudes about my fiction and my nonfiction. I write nonfiction for other people. I write fiction for myself. I’m a control freak about my fiction. I’m quite loose with my nonfiction.

And those distinctions are on purpose.

To put it another way, I look at the difference this way: I’m going to the Licensing Expo in June and while there, I will be acting as a licensor for my fiction IP. I’m not even going to mention the nonfiction IP.

I see lots of possibilities for fiction. I know there are a lot of ways I can exploit the nonfiction as well, but I’m not as interested. I only have so much time in the day, and I’ll spend it on fiction.

The upshot is that I’m extremely protective of my fiction. In no way do I want to get in a pissing contest with an internet company that deals with billions of dollars in revenue when it claims that it owns my IP. Yeah, I can hire a good lawyer to protect me, but I don’t have unlimited time or resources the way large corporations do to keep a lawsuit alive for years or months.

Many lawsuits are won by the people who are willing to nibble away at the edges for years (and give lawyers a fortune in billable hours). The other side eventually throws in the towel—not because they lack a case, but because they lack the financial wherewithal to continue the fight.

Such a battle is not for me. I got too many books to write.

So when I saw that clause in the Patreon Terms of Use, I cast about for mitigating factors. There are several. The final sentence of the paragraph for one. The FAQ for another. Unfortunately, those things don’t clarify the possible rights grab. Instead, they muddy the waters. There’s enough confusion to make a lawsuit possible, which brought up the nightmare I listed above.

I felt disappointed that I couldn’t use Patreon as another revenue stream for my fiction. But I wasn’t so disappointed that I would throw caution to the wind and jump onto the platform for a few extra bucks.

I hesitated on the nonfiction as well, but ultimately decided that I could take a risk with the nonfiction that I would never take with the fiction. I even put up exclusive nonfiction content on Patreon, but it’s similar to what I put on my website, and it’s never something that I would want extra copyright protection on, like some kind of investigative reporting or a piece of creative nonfiction.

I’m very protective of my IP, but I’m fluid in the ways I exploit it. Making a judgement about which service to use and which one to abandon has become old hat for me.

I do that when I see contracts. I’ve walked away from short story contracts, foreign contracts, traditional publishing contracts, and movie deals. I’ve walked away from deals that would have paid me hundreds of thousands of dollars but would have taken my IP for that price. I have yet to find that price that “they” swear we all have—you know: where you will sell out your principles for a fortune. Offer me tens of millions for total ownership of my fiction IP and I will say no every single time.

Nonfiction, though…I’ll think about it. Maybe this comes from the fact that I got my nonfiction education in radio as a volunteer. In other words, I wrote nonfiction for free (or rather, as I saw it, in return for a master class in writing under fire). When I became proficient, I got paid (a tiny salary, but still). So there was money, but it was never the focus of the nonfiction.

Nor is money the focus of my fiction. Freely exploring my own imagination is the focus of my fiction. If I sign the wrong contract, I barricade off areas of my imagination inside my own mind. If I lose my IP, I won’t be able to hang out with certain characters anymore. I’ve given them—and their foibles and quirks—to some corporate entity, and for what? Money? Ick.

Other people have different limits. My husband Dean Wesley Smith and I have this conversation a lot, because he says he has a price at which someone could buy all rights to a series or a novel. It’s a steep price, with many, many, many zeros. But he has one.

And that’s okay. I understand it. Because I know that we are all different, even if we live in the same household and have the same profession.

Here is my bottom line on any business decision, including signing contracts (or Terms of Use) with dicey terms.

1. Know What You’re Signing. Make sure you understand the legalese. Make sure you know what each clause means and/or how a court might interpret those clauses in relation to all other clauses.

As PG mentioned in his long post, “Under general principles governing the interpretation of contracts, if there is a conflict between a specific and a general provision, the specific provision will govern.” He uses the Patreon Terms of Use as an example. The first sentence in the copyright grab is very specific. The second, slightly reassuring sentence, is very general.

In other words, the copyright grab has a good chance of holding up in a court challenge. Right now, we’re discussing a made-up court challenge that might never happen. So…

2. Map Out The Best And Worst Case Scenarios. Make sure you can live with both. (Sometimes a best-case scenario has uncomfortable aspects as well. I’ve walked from best-case scenarios because I didn’t have the time to deal with that success—or, usually, I didn’t want to, because that success would dramatically alter the nature of my career, sending it in a direction I do not want.)

I don’t mean that you should give this some casual thought. Do some deep, hard thinking about what will happen if everything you fear in that contract or deal comes to pass. Then do the same kind of deep, hard thinking about what will happen if everything that could go well in that contract or deal comes to pass.

You’re a writer; imagination is your strong suit. Use it here.

3. Do Your Best To Negotiate The Best Deal For You. But remember, in business as in life, the key word is compromise. You’re not going to get everything you want, but neither should the other party. At some point, you will have a final agreement. That agreement will have some uncomfortable stuff. Do you continue with the deal or do you walk?

Because…

4. Walking Away Is Always An Option. Just because you negotiated something doesn’t mean you have to accept the final terms. However, if you do decide to go ahead with the deal or contract—any deal or contract—

5. Make Sure You Can Live With The Consequences. In Hollywood Vs. The Author, Michael Connolly discusses the terrible deal he initially signed for his Harry Bosch series and what he had to do to get out of that deal. But he remains clear about why he signed that deal in the first place. It gave him the financial freedom to pursue a full-time writing career. He bought a house, and brought some stability into his life. [link]

He repeats this, not as an excuse for signing the original deal, but for signing it with the clear-eyed foresight of someone who knew that the deal might go sour. He wanted to make sure he got what he got from the deal before it went south. And he did.

The key word here is “clear-eyed” because you don’t ever want to…well, I feel another rule coming on:

6. Don’t Ever Delude Yourself About The Consequences. Ever. Don’t let the phrase, “Yeah, I know it’s bad, but they’ll never do that to me” out of your mouth. If something is in a contract, or part of a deal, then there’s a very real chance that that something will get activated. Someone—maybe not the person you’re negotiating with—will do that horrible thing allowed by the contract.

Be prepared for that. If you can live with that bad thing, then sign the deal. If you can’t, don’t sign.

The choice really is that binary.

I can live with fighting over my nonfiction IP with Patreon. I won’t be happy. I will hope that some other author or creative will lead the charge (and fund the lawsuit), but I can live with that fight.

I can’t live with the fight for my fiction. That fight would take over my entire life. So I keep my fiction off Patreon.

That’s my choice.  A lot of writers make a different choice.

I hope that it’s an informed choice, based on what they want for themselves and their careers.

That’s the key, for me. If you make an informed choice to risk some portion of your IP (or your livelihood or your life, for that matter), then I will respect that choice.

If you go in blindly, eyes closed, figuring nothing bad will happen to you no matter what, then…well, I almost said you deserve what you get. But that’s not true. I’ve seen lives and careers ruined by willful ignorance.

I hate it. I don’t think those folks deserved what they got. But I’m not that likely to help them either. I write the blog to give out information, and so do a lot of other writers.

We’re paying forward, hoping someone won’t make the mistakes we did. The information is out there.

If someone choses to ignore it or, worse, deny that it’s even valid, then that’s their problem. And their loss.

Literally.

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“Business Musings: Patreon, Copyright, and Personal Choice,” copyright © 2019 by Kristine Kathryn Rusch. Image at the top of the blog copyright © Can Stock Photo / NomadSoul1.