Much has been said about Yahoo's acquisition of popular blogging platform Tumblr, and of Yahoo CEO Marissa Mayer's carefully vague assurances that Tumblr's pornographic content — of which there is a great deal — would not be infringed upon by the buyout.
But the kerfuffle over Tumblr's porn content in the mainstream media has brought to light a different question: What to do with Tumblr's smut?
Often conflated with the word "porn," "smut" refers to drawings or written fiction of sexually graphic acts.
Tumblr is a blogging platform, meaning you can use the site to host just about any kind of content. This opens up huge potentials for Yahoo to grow. But Tumblr is also known for two things: art, and fan communities. The place where the two intersect has given rise to a sizable amount of potentially questionable content.
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Tumblr's smut comes most often in the form of fanfiction or fanart, which are creations that expand upon or repurpose the characters and settings of existing books, movies, TV shows, comics, videogames and other fiction. It's also not unheard of to find fanfiction and fanart about real people — celebrities like Justin Bieber and the members of the band One Direction are often targets of such fantasies.
Creators of fanfiction and fanart are a small subsection of most fandoms, and the erotic creators even smaller, but they are a flourishing subculture with the ability to disseminate their works easily and quickly to the fandom at large.
The United States Criminal Code states that it is illegal to possess or disseminate anything that: "depicts a minor engaging in sexually explicit conduct; and is obscene; or depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and lacks serious literary, artistic, political, or scientific value; or attempts or conspires to do so" ( Title 18, Ch. 1466 A ).
The law makes no mention of written depictions, but specifically includes "a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting."
This could be a problem for many "fandoms," or fan communities, particularly as many science fiction and fantasy stories around which fandoms arise feature characters under age 18.
Other community websites, like DeviantArt, forbid any illustrations of sexual acts of any kind, though a quick search will show that their enforcement of this rule is often lax. Fanfiction.net's terms of service defer to local country laws and deny any responsibility for content found on the site.
The act of creating content with someone else's intellectual property is protected under the fair use clause of United States copyright law, so long as the source material is accurately attributed and the fan creator makes no money from the production. Although major franchises originally regarded fan labor with wariness and skepticism, many have come to accept and even encourage fanfiction and fanart as a way of developing fan communities and benefitting from free advertising.
Allowing Tumblr to retain its autonomy will keep Yahoo from having to deal with the often tricky legality of fan-created works. And it seems that under U.S. law, written smut is not regulated even if it depicts minors and/or abusive and violent scenarios. It's the illustrated smut that poses the problem — even if it's not pornography per se, it's still strictly prohibited by U.S. law.
And with Yahoo's takeover, suddenly Tumblr, and its questionable content, are square in the national spotlight.
Maybe don’t reblog that next Harry/Draco sketch that comes up on your Tumblr dash.
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