Fair Use and Fairly Using

Charlaine Harris recently got picked up for a video game deal and for articles, and of course, television shows. Somewhere, I read someone calling her “lucky”. Like it was absolute serendipity that all of this stuff is just something that happens at random and she won the lottery or something. Riiiight.

As a person who’s been involved with intellectual property rights, and ideas I’ve thought up all on my lonesome, I have a real understanding of what actual intellectual property rights are. Since I’m not in medicine, I have and always will be the sole owner of the research I’ve done – to sell or share as I see fit. That’s what a Ph.D. thesis is – original work that no one else has done before in the history of the world. I even have to prove it by showing that others have covered the same subject, but haven’t researched before me. Not only that, but I have to stand up to a room full of academics who poke holes in my reasoning – and who may have (and it didn’t happen) informed me that in fact, someone else has beaten me to it. As a result, I see it as essential to always associate original work with critical appraisal of equals, and know the importance of not plagiarising – with mutual respect even if I disagree. That’s mostly what academics do – tear down old assumptions and bring new ideas or combine two ideas that were separate, but now they’re together are far more awesome.

One of the things I think is hazy for me personally with fanfic is “plagiarism” due to my professional stance on such things.  After all, plagiarism is defined as taking someone else’s ideas and treating them as your own. That’s what fanfic mostly does. It’s allowable under fair use rules if you only take 10% of their stuff, but most fanfic relies on more than 10% – it relies on the totality of the work. Now technically, of course, the fair use rule allows it because it’s not in block form, and the author is clearly referenced. But I still have issues with claiming something because I make a concerted effort not to plagiarise in my work, and I have bigger issues when idiot authors claim CH took their idea or learned from them – because, honey, it’s definitely the other way around.
At the heart of concerns about plagiarism is the idea of intellectual property. If you think up an idea, it’s all yours. If you can prove you had that idea first, no one can take it away from you without paying for the privilege. Now, most of the time that authors buck up at the idea of plagiarism in fanfic, that’s at the heart of it – their ideas of intellectual property they’ve written. But if, as is often the case, they took the idea for the fanfic from a movie that they saw or another book they’ve read and incorporated it with SVM, then they’ve just made a new fusion of intellectual property of others, and done little work themselves actually thinking up a new idea.

CH has an original idea – one that I have yet to read in vampire fiction. At least in those who beat CH to the punch, and Twilight seemed a little like the milquetoast version of SVM – and SVM was written first.  In fanfic, made off her work, a limited amount of work has been done. I can’t deny that thinking up new storylines is a time consuming business. I’ve sat down and tried to think up how CH is going to work the new book, and where that’s going to go. In my fanfics, thinking up the story line is the fucking hard bit, as I have zero creative writing ability, and my fanfic shows how impossible that is for me – because I have to find a way to work around dialogue and interaction, and make more of a summary, but put it in character and change what is known. I work much better like this – I treat you all as if you’re at a tutorial, and then talk to you like you’re an audience of students. Then comes the writing and the dialogue, which is hard, but not particularly harder than writing a letter.  Am I so connected and invested in this idea as I am in my commercial venture – the stuff I’ve put my real heart and soul into? Why no, I’m not.

I couldn’t give two shits with fanfic if someone were to cut and paste any of my stories, or anything from my journal posts. After all, the majority of the content comes to me from CH, and what I’ve brought to the table in the name of criminological stuff. I’d reference that, but that’s a lot more trouble than I go to for some journal. Just know that I don’t talk about my own original research online because of that rarity – knowing the subject leads me to being an easy name to google. I don’t really want to give all the internet people the links between my online identity and my real identity. But since the stuff I talk about here is from stuff I remember, rather than referring to reference books, it’s not plagiarism anyway. If I copy and paste, the academic in me feels better if I reference page numbers, so I do it for my quotes of CH’s books.

Not to mention that it makes out that any and all of this is life changing for me, and when it comes down to it, this journal, my fanfic isn’t going to make me money – it’s my hobby, and I’m not so determined to be winner of the internet that I care that much about whether I’m properly credited. I’ve always told authors when they’ve asked that they can take ownership of anything I say in my reviews without concern or any problems from me.  I can always think up new ideas – and that’s how I make my money.  Way too much is made of being able to credit ideas back to their genesis, which seems to me to be antithetical to the entire fanfiction idea. After all, all of the ideas came somehow from CH. Rarely do they deviate into something new that is so unique it could do with some claiming.

As far as I’m concerned, it’s rare that I’ve read something new – as in the idea hasn’t even been touched on before. If it’s well done, then it will get my fealty, but really, a lot of stuff has been done over and over for the sake of practising writing skills. Then it’s a case of picking and choosing which one is the favourite version of that story. Sookie being fairy princess is not new, Sookie going back to the Viking era is not new. I mean, come on, it’s hardly out of left field. Their backgrounds suggest that that is a good idea – and a very logical conclusion it is too.  Thyra10 did a wonderful version of Sookie going back to the Viking era – the only finished one so far – and I love it. But that doesn’t mean that it is the definitive work, and if CH were to write it she would have stolen it from Thyra10, or if any other author wrote it without reading all the fanfic I have that they stole it. As long as it’s done well, I don’t mind reading version after version. Lest you think otherwise, I’ve spoken to Thyra10 about this before – so I’m not throwing her under any buses here – she wants more Viking stuff, not less.

So story lines tend to go along relatively predictable lines – and usually, they’re romances – which lessens the deviation already. After all, if it’s an Eric and Sookie story, there’s over 1700 versions on Fanfic.net. If it’s specifically listed under Romance, there’s 1300 of those on Fanfic.net. The only bit that can really make it unique is the storyline, but suggesting stuff that has a basis in the books makes it not unique. Story lines are rarely unique, mainly because it takes a little lateral thinking. For example, I could have my choice at the moment in the True Blood section as to Amnesiac Eric, but I think a really actually interesting twist would be what if all the vampires forget they met Sookie? No one’s doing that, but no one can claim Amnesiac Eric is born of the ether either. An interesting deviation would be what if Sookie kicked his arse to the curb, due to the whole basement scene, but that’s not really written either. Sookie is made conveniently smart – ie. with the romance in mind.

Almost all of fanfic involves tipping your hand.  That’s whence comes the reviewer unhappiness when there isn’t a HEA. If the writer set up a romance in the first 10% of the fic, then they’d better have it, by jingo. It’s when there are twists and turns that things get interesting. Personally, as a reader not looking solely for the writer to mash together Sookie and Eric because I’m absolutely sure it’s going to happen in the real books, then I tend to look for more than just mashing them together.  I’ve invested in the CH storylines, and that’s how I can watch people fuck it completely and not be affected. It’s also why I’m so canon – I’ve compartmentalised the original from the fanfic. Stories, when I read them, have to stand more on their own merits than on CH’s. I won’t exercise my logic too hard on them (and destroy the underpinnings of the story I know will be destroyed) and I won’t be too harsh on them.

Apart from storylines, the other thing that fanfic uses is the amount of sympathy built up for characters. When people first seek out fanfic, they usually, at least in this community want to see Eric and Sookie together. That’s why they end up reading Eric and Sookie fan fiction. The rarer Bill babes trot along to Bill/Sookie fic, and the rare as hens’ teeth other suitor favours have maybe ten stories in total to read. The person who reads Sookie and Eric romance fic really wants Sookie and Eric to have a HEA – some of them will even state this as their purpose. They then superimpose the HEA from the fic onto the book characters.  But they won’t be truly satisfied until it happens to the book characters as well – that’s why they read the same romance storylines over and over.

Writers shouldn’t fool themselves into thinking it is their writing that’s doing the majority of the hard work of getting them together – it’s CH’s. Readers are invested in that relationship before they came into the fanfic community. Readers already want to see Sookie and Eric together, so authors have to do a bit of work to make that not something that readers favour. Sometimes it can be good work – making a great character perfectly suited to Sookie, with none of the serious drawbacks of her current suitors (because none of them really shine as an outstanding choice). That has involved investing readers in characters emotionally, and not being shallow. Usually, if an author can do that, they’re ready to take their writing to the next level – if they’ve invented a character that is not a hollow shell or reproduction of any of the original characters. It can’t be a blandly perfect man either – that character should have flaws as well – just be more suited to Sookie with the flaws than other suitors. Then they’re ready. If people mention their original character when the story is over, and care that they live or die, have a love for them, it’s time to go onto thinking about an original fiction with that original character.

Sometimes it can be really silly writing that expends that sympathy, rather than builds it. I call this in my head “driving the story into the ditch”. That’s when writers siphon off most of the sympathy that CH has built up for the characters by driving the story into the ditch, making sure that readers are no longer as invested in the couple as they were when they entered the fandom. In effect, without reliance on CH’s writing, no one would want that couple together. The relationship isn’t built enough, or more commonly, writers have put so much angst into it that they’ve effectively demolished the relationship that CH has built in their minds. Characteristically, driving a story into the ditch is done very effectively when Eric cheats behind Sookie’s back, treats Sookie like a whore, or initiates a long term relationship with someone else while Sookie is available, or instead of Sookie altogether.

That’s not to say that all of the above scenarios always expend sympathy – but they do expend a lot. So there’s a limit to how much they can work that with existing sympathy without needing to do some substantial writing, which is not something I think most writers can really do in this fandom, not with any success without the existing CH architecture. It’s even rare in that case that readers are anything more than ambivalent about the whole story without a whole bunch of sex scenes. For sex scenes, writers can get most readers to ignore the glaring faults with the relationship and review anyway. That’s the technique that the majority of authors use to get themselves out of the ditch. Writing sex gets reviews, so that will push the story over the hump of losing readers who no longer like the relationship, and as long as there’s sex and HEA, some readers are happy because that’s what they want for the book characters.

Usually, writers who drive a story into the ditch still want Sookie and Eric together in a HEA because they’re invested in CH’s storylines, so they create scenarios wherein they’re back together that are just as contrived as their angst, but serve the purpose of having Sookie rush to Eric’s side. Even though they realise that the readers aren’t for it, they try their hardest to get it back out of the ditch, distracting readers often with a sex scene and declarations of eternal love. Or they’ll make Sookie less sympathetic so that she has to grovel for Eric’s attention, and make her behave in out of character ways, even for the character they’ve constructed. But readers aren’t really invested in that relationship – not the one written without CH’s existing architecture. If they were to change the names of the characters and chuck it out for the general public, then everyone would think that writer is huffing something. Unfortunately, thanks to the positive review culture, odds are that they won’t have anyone tell them such either. I can tell though – because the readers say things like “I always want them together” or “Sookie and Eric are soul mates” or something like that – in which case, they’re relying on CH’s work – not their own fabulousness.

See, in the dynamic wherein Sookie’s always wrong, the very least readers like to see is her getting the shit kicked out of her – because that’s an effective treatment if you like things like your own life, and it makes you cling harder to Eric for protection. It’s an echo of what they want to happen in the books – that she will cling harder to Eric, and do everything she can to keep him.  There are various themes running through fanfic and readers’ minds that are all about keeping Eric (which as Sookie rightly points out in permaboner, she’s had difficulty getting rid of Eric). But cheating? Cheating drives her away from Eric. Usually it’s Eric cheating, and that’s really only acceptable to readers if it’s Clayton’s cheating – the cheat whereby he kisses someone else and Sookie catches him – leading to her being in the wrong and everything being easily fixed with a good dressing down for Sookie with her careless use of eyesight. Sometimes I wonder if there is a little voice in some of the Eric fangirls’ heads that tells them that Eric doesn’t really shine – so in fanfic, if he isn’t the paragon of the perfect male partner, then he quickly loses sympathy with readers because he’s already such a dick to Sookie in part of the books.

One of the key ways to maintain sympathy for Eric and Sookie is to have EPOV.  When EPOV is used, half the time it’s because in the SPOV narrative, the sympathy can’t really be maintained to smoosh them together.  EPOV is absolutely necessary to have readers not trying to shiv fictional Eric as much as they can, and give a shit about the couple being together. Most typically, fictional Eric will think only nice thoughts. He will never think anything nasty, because in the words of one of my favourite movies, he’s about “one cunt hair away from hillbilly heaven” (Blade 2 – I do love swears). Eric can act like a giant jerk, but he better have antithetical thoughts to being a giant jerk, or readers will never forgive him, and only be as invested in that relationship as far as they always want to see Eric and Sookie together.  Readers won’t really want it – they’ll want it only as far as they want it in CH’s books, and not particularly in that story itself. EPOV is absolutely essential when they’re driving it towards the ditch – because if he doesn’t somehow find some way to make himself likeable to the readers, again with the shivving. You can tell when it’s judicious and good use of EPOV, because Eric doesn’t always think good and helpful thoughts – he thinks realistic thoughts, which are not always about how freaking wonderful Sookie is while he’s mistreating her.

If the writer maintains the sympathy, or even if they drive it towards that ditch without going in, then they’re relying on CH’s work – not their own. They’ll get praise for the writing that they’ve done merely because all the people currently reading that fanfic just want book Eric and Sookie together, and that fanfic is the stop-gap that readers use between books. It is the rare writer who can get the reader to invest in other relationships without demonising Eric. To a certain extent, part of the sympathy that is had for the more jerk-Eric I see in fanfic is only made by demonising Bill, Quinn and Sam. If they make Bill, Quinn or Sam giant douche-turds, then Eric doesn’t seem so bad.  If writers make Sookie a douche-turd, then they can use that sympathy too – because in the books, Eric doesn’t really deserve such a nice woman, but they can make it so if they hate on her enough and finally get her down to his level by bringing her worth down.

We all know that Sookie most often is changed to being the author’s personality themselves – because most of the time, Sookie doesn’t think of Eric’s magnificence, and she’s not weak – but the writers think that way.  I don’t see Book Sookie as often as I’d like, and that’s because Sookie is morphed into author but called Sookie so people will read it. In fact, many of the OC changes done to the original characters are because no one will read and review it if it’s not Eric and Sookie getting it on together. I know I’m not much interested in a story where Sookie doesn’t feature, and most other people just don’t like Eric enough to read him without Sookie, regardless of what they say. Otherwise the Sookie haters would read Eric/OC fic instead of Sookie/Eric fic – but they continue to do so, and continue to read the books, and continue to read fanfic about the books. Moreover, changes to Sookie are only okay if they make her more compliant and submissive, dancing to Eric’s tune because that gets to the sex and HEA much more quickly.

The last thing that people take from CH and use for the totality of their story is her readership.  It makes me wonder what wonderful crack someone has smoked when they tell an author (and for Christ’s sake I’ve been told and I’ve just rearranged the information from the books and made it easily accessible) that they are better than CH. Yet, surprisingly, none of the fanfic I’ve read has made it to the New York’s bestseller list yet.  I can only imagine that some readers think it’s a generic compliment, and one that authors appreciate – but all of the writer friends I’ve spoken to about this privately dislike it. The reality is that no matter how well liked a fanfic is, the original author is the person who got all the readers for me and everyone else.  Say if I have 50,000 CH readers – that is a tiny proportion of CH’s selling power. She has sold over 40 million books and counting.

I know that some authors will credit themselves honestly thinking that they are better than CH, but even in a community like this, we all liked CH enough to read up to DTTW at least (because some readers are disingenuous about their author appreciation for the sake of their own egos) and they’d have to have every single SVM reader endorse their stuff to consider themselves close to the mark. Since I read CH’s stuff and can’t immediately tear holes in it, but I hold back when it comes to fanfic, then even if the numbers were gotten, that’s a little bit more arrogance than the writer is due. That’s another unfortunate effect of the positive review culture – authors doing it for their own benefit at the expense of the person who has the original idea and the sole intellectual property rights.

It drives me honestly nuts to see it happening in this community. Sure, authors will let you stroke their egos, and wax lyrical about their own abilities because they’ve pleased fifty thousand readers (if that) but the truth is that they aren’t as good or they’d be selling 40 million books and not writing for free, and what’s being done is ego stroking that’s blowing smoke up a fanfic author’s arse. It seems to me to be the very height of rude and arrogant behaviour to make out like CH is the crappy person who just gave launch to the greatness of random internet person who knows the truth.  Even writing this journal post, unless I get 40 million “I agrees” at the bottom, I come nowhere near to the awesome readership CH has garnered – but at least I don’t both fool myself that I do, and rag on CH while I do it – so I don’t see it as a problem.

Taking intellectual property and making it your own is fine under the fair use rules, but this sort of use is hardly fair – writers are rude to the original creator for the sake of their own egos, readers are contemptuous while still being so invested in the books that they read fanfic about it for goodness sake. Writers still use the original works, the original readers, the original storylines and the original sympathy for relationships.  Readers aren’t reading because the story has caught their eye – they’re reading because it’s an Eric and Sookie story. Fair use should be applied with an idea that this is a privilege that the owner of that idea allows – not an inherent right for the reader to do any old shit they want, and crap on the author in the process.

If these people were so sure of their literary brilliance, they should just have a go at changing it to Eric/OC in this E/S centric community; post it under a new username no one knows; and see how well that works out. Then they’ll see how truly brilliant they really are. On the plus side, those reviews writers get for Eric/OC under a new username will be actual praise for their personality, and only the Eric related praise belongs to CH.

So even if stories don’t take the word for word quotes from the original works, they still take quite a bit from the original author or the original sources like movies. With the advent of spellcheck in Word programs and betas, I don’t know that claim can really be made for writing correctly or grammatically – which is not exceptional – and why I never praise it or fault it. Pressing the F7 key really doesn’t need a pat on the head, or a scolding for not pressing it. I can’t believe that much belongs to the author themselves, other than the exceptional ideas or poor behaviour. If those exceptional ideas are lacking, then the very most an author owns is the rather pedestrian writing and at the very least, rather poor behaviour and nastiness.  Why they’d want to lay claim to that is beyond me.

More importantly, it seems that it is the absolute height of poor, immature behaviour to take the intellectual property of someone else – someone who is kind enough not to put the banhammer on all of this, and make out like their own greatness far outweighs CH’s.  Particularly when they are using fellow customers, fellow lovers of her work to prop up their own fandom activities.  The very least that could be done is not make out like we’re all here because of serendipity – because that’s certainly not why I’m here – but because she’s actually done the hard yards. If I didn’t believe that she had, then I wouldn’t read these books and discuss these books, and no one else would either. Luck has nothing to do with it.

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