Business Musings: Patreon, Copyright, And Personal Choice

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…

  1. 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.

18 responses to “Business Musings: Patreon, Copyright, And Personal Choice”

  1. Tikiri says:

    Thank you for an insightful and informative post, Kristine! I consider you to be the godmother of self-publishing and am grateful for you sharing your wisdom.

    Michael Lucas, I’ve been considering a similar set up with Patreon, so am very glad to hear of what you have done.

    I was thinking of getting folks to sign up on Patreon and funneling subscribers to my email list (Mailerlite) via Zapier which integrates both. After that, I can safely send each segmented group their goodies as I wish without worrying about someone doing a rights grab.

    Is this similar to what you are doing? If not, do you see any issues with this plan?

    But this idea begs the question: why use Patreon at all then? Why not set this up on my own website with a paypal or stripe payment?

  2. herbn says:

    I have a question on your thoughts that it only applies to your non-fiction.

    In the past year Patreon has removed individuals for violating their terms of service, but the violations did not occur on Patreon. In at least one case they did not occur on a platformed controlled by the person in question nor one supported by the person’s Patreon.

    Patreon, however, claimed because the individual’s work was supported by money they earned via Patreon that all public activities related to that work fell under Patreon’s terms of service.

    If they decided to use this part of the terms of service as a rights grab what is to prevent them using the same logic, that you derive income from Patreaon and thus your fiction is supported by Patreon even though you don’t post it there thus the license in the terms of service exists for your fiction?

    • Good question. I think the short answer to your question is that anyone can sue anyone else for any reason. They can make up all kinds of pretexts. It would be up to the person in question as to whether or not they’d fight in court.

  3. Barb says:

    I got an email from Patreon at the end of April with changes in policies et all. Today I actually went and read it, and now the above paragraph goes like this:

    Your creations
    You keep complete ownership of all creations, but you give us permission to use them on Patreon. Make sure you have permission to use creations that you offer on Patreon.

    You keep full ownership of all creations that you offer on Patreon, but we need licenses from you to operate Patreon effectively.

    By posting creations on 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 creation. The purpose of this license is strictly limited to allow us to provide and promote memberships to your patrons. We will never try to steal your creations or use them in an exploitative way.

    You may not post creations that infringe others’ intellectual property or proprietary rights.

    Patrons may not use creations posted by creators in any way not authorized by the creator.

    Still a rights grab? Should I ask Passive Guy? (I did read his comment and how to rephrase the thing, and this sounds almost like he did, so maybe they are listening?)

    How I hate legalese… I had just resurrected that page and they’re adding a bunch of stuff that I won’t need, but whatev…
    Thanks, as always! 🙂

  4. Thanks for the extended answer, Kris.

    I’m not putting any more scenes from the WIP up on Patreon until and unless that paragraph is changed. Or I figure out how to send that separately to patrons. I’m rethinking the whole idea – of putting up backstage material about the WIP – too.

  5. CB Wright says:

    How is this substantially different from the Amazon KDP agreement? from there “You grant to each Amazon party, throughout the term of this Agreement, a nonexclusive, irrevocable, right and license to print (on-demand and in anticipation of customer demand) and distribute Books, directly and through third-party distributors, in all formats you choose to make available through KDP by all distribution means available.”

    The only difference I see is Amazon adds “throughout the term of this Agreement” but it still says “irrevocable” and I assume if I terminate the agreement Amazon will still feel free to make my ebooks available to customers who have already purchased them.

    • Well, it’s substantially different. “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.” That’s Patreon. That’s a rights grab. KDP doesn’t say that at all.

      Rather than go deeper on that myself, look at these comments in the Passive Voice. He’s a lawyer. I’m not. https://www.thepassivevoice.com/the-beginning-of-the-end-for-patreon/#comments

      I will say this, though. If you don’t understand the difference between what KDP asks for to distribute the content, and what Patreon is doing, you need to study copyright.

    • C.E. Petit says:

      This is not legal advice. This is commentary to help readers understand things well enough to talk to THEIR OWN LAWYER in a PRIVILEGED conversation after sufficient investigation of the facts, get appropriate counsel, and make an informed decision. (You can’t tell my background, can you?)

      (1) Amazon’s is limited to (a) throughout the term of this Agreement, (b) print and distribute books… in all formats you choose to make available through KDP. Patreon… no limits, either as to time or means. Indeed, the Amazon statement explicitly states that it’s a “mere” license.*

      (2) Amazon’s choice of law is Washington (state), and imposes AAA arbitration but allows for use of small claims court if the dispute qualifies (which may, or may not, mean use of the proposed “copyright small claims” system currently proposed in Congress). Patreon’s choice of law is California, and imposes JAMS arbitration for all disputes. This is a wash for most natural people (JAMS is better than AAA, but the small-claims safety valve makes a difference); it is substantially NOT the same for business entities, which do much better under Washington law and AAA rules. Not to mention that an author — or lawyer — from east of the Mississippi is probably unfamiliar with JAMS and doesn’t know its particular speed traps. As a group, JAMS arbitrators are averse to interpreting contracts beyond their “four corners”; that means that Our Gracious Hostess’s concern that the “reassurances” won’t matter is well founded. Yes, this is an example of “reading the whole contract to see what it means instead of clause by clause.”

      (3) Amazon’s contract is imperfect but has a clear purpose with clear author-selectable termination at pretty much any time. Patreon’s… is imperfect, its purpose is as clear as a typical White House press briefing (under any administration), and after reading it half a dozen times (as a whole) I still can’t figure out who has the right to terminate, and when, if any deliverables remain possible.

      We’d be getting way too far into the weeds of arrogance in the New York bar, judge-made rules under the 1909 Act that have not been reexamined for validity under the 1976 Act, and a variety of other legal things. Just trust me when I say that the phrase “mere license” has a horrible, anti-author history in American copyright law.

  6. Thomas E says:

    I agree with everything you say but would like to add to further things that should be obvious:

    Don’t be afraid to get advice from a properly trained lawyer specialising in the area if you need to and,
    Do keep copies of every legal document you sign or agree to.

  7. Loyd Jenkins says:

    Thanks for all your advise and info.

    By the way, I saw that it snowed in Superior yesterday. Are you sure you don’t want to move back? *wink, nudge

  8. Isabo Kelly says:

    I just finished Hollywood vs The Author the day before reading this post, and even before you mentioned the book, all the lawsuit stuff made me think of it. A good read for any writer, just to see what can happen with contracts–best and worst cases and everything in between.

    I have to say, though, Hollywood is banana crackers, and I’m not sure how anyone ventures into that chaos. Wow.

  9. I started using Patreon only after I set up a private way to distribute my work to Patrons. Patreon gets a monthly status blog post, and occasional links where patrons can grab files for the next couple months. If they decide to do a rights grab on my October 2017 Patreon Update, well, .

    But most people are not technically literate enough to realistically do this. 🙁

    My summer project is setting up my own subscription service on my bookstore, so people can choose to avoid Patreon. It’ll cost me more in fees, but it avoids the Patreon risks.

    • Sara says:

      Thanks for this Micheal. And thanks Kris for the list of points to keep in mind. I had thought to use Patreon for my own work some time in the future but I got scared when the rights grab and rate hike started popping up on my radar awhile ago. After this article and your comment I’m confident that I can come up with a better plan to make use of them with an alternative file sharing service.

      Thanks again!

    • Widdershins says:

      I was wondering if anyone would bring this up. Have you had any feedback from your patrons on this extra step?

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