The Patreon Licensing Agreement

Okay, all of this started when the following post, by a lawyer, was brought to my attention:

https://www.thepassivevoice.com/the-beginning-of-the-end-for-patreon/

(I suggest reading it)

So I hired an IP lawyer to look at the post above as well as the terms of the contact you sign when you join Patreon as a creator, and this is what I got back:

Hi John,

 I have broken the analysis up into a couple of sections going from high level at the top to nitty-gritty at the bottom.

 Bottom Line: The rights you are giving Patreon are too broad if you are posting complete novels to the site. You have two options: 1) Use Patreon to collect payments and post updates to engage with your community, but distribute your work (books, rewards, and content) through another system like email (i.e. not posting them to Patreon, but using Constant Contact or Mail Chimp); or 2) Stop using Patreon altogether.      

Explanation of Bottom Line: Here is the language of the license you are granting Patreon: “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.” It is too broad because there is no time limit, no limitations on use (despite the later wording in the same paragraph, see attached and below), no payments to you, and no ability by you to revoke the license should a falling out occur. 

 Detailed Analysis: There are some things in the post with which I agree, but some things with which I don’t. The post heavily implies that the language gives Patreon ownership of the work you post on Patreon. That is false, but the tricky part is that the rights you do give up are so broad that it looks like ownership to normal people.

 The reason it is false is because of the words “non-exclusive.” That means you have all the ability to perform all the copyrights (use, reproduce, distribute, perform, publicly display or prepare derivative works) yourself, or authorize others to do so. For example, you can sell your books on Amazon because you retain the right to authorize Amazon to reproduce and distribute. 

 However, the reason it looks like ownership to normal people is that Patreon can distribute your works for free, the same works you are selling on Amazon. Patreon can do that because of the words “royalty-free,” “reproduce,” and “distribute.” So to normal people, what good is that non-exclusivity doing? Not much, because although you can sell on Amazon, you won’t make any money when they can go to Patreon for the same content for free. But it is because of that non-exclusivity that these Patreon statements are true: 

·         “You keep complete ownership of all content, but give us permission to use it on Patreon.”

·         “You keep full ownership of all content that you post on Patreon, but to operate we need licenses from you.”

 Speaking of which, the following statements MAY also be true, but the problem is two-fold: 1) it requires you to trust Patreon; and 2) the trust requirement is unnecessary if Patreon would have just circumscribed the rights language in the first place (this is the part where I agree with the post):

·         “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.”

 The best way I can put it is that Patreon’s actions are not comporting with their words. They may not have broken their promise yet, and they may never break their promise due to the bad PR they would receive, but if we are in a position where we can protect ourselves from a potential broken promise then let’s do so.