All's Fair Use in Love & Reylo (Well Kinda)
Updated: Sep 6, 2020
2020, seriously, calm down, bruh. You’ve gotta stop.
The last few days can pretty much be explained in the following:
My initial chuckling at the discovery of the teeny weenie accessory spleenie chilled out as I steelyarded the situation and realized that — given that most splenules are apparently a congenital thing, per Dr. Google — it seems unlikely that one radiologist just now discovered it and/or thought to write it down in my chart.
And now I get to play the waiting game until my virtual consults on Monday.
In the meantime, let’s talk about something equally fun — Reylo smut and copyright!
U.S. copyright law regarding fair use is very much a case-by-case kind of thing, and ultimately depends on something called the four-point test, or Section 107 of the Copyright Act (check out Stanford’s take on it here).
Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes
Nature of the copyrighted work
Amount and substantiality of the portion used in relation to the copyrighted work as a whole
Effect of the use upon the potential market for or value of the copyrighted work
The four points are sorta like the pirate’s code from PotC (more like guidelines), but in full good faith, it seems to me that many Reylo smut stories are transformative and original enough to fall into the arena of fair use.
Obviously we’re gonna break it down, so let’s leeroy on in!
N.B. I have an advanced degree in screenwriting, but I am NOT a lawyer. This stuff is subjective AF and relies heavily on your judge not being an asshat who’s prejudiced against expressions of non-male gaze sexuality.
Extra N.B: I’m using traditional shorthand; SW = Star Wars, OT = Original Trilogy, ST = the Sequel Trilogy, etc.)
+ NATURE OF THE COPYRIGHTED WORK
Yep, we’re taking these prongs out of order, but I want to start with this one in particular because I think it’s the cornerstone.
Star Wars is a sci-fairytale; George Lucas intentionally used Joseph Campbell’s monomythic structure to create a story that would be universally beloved.
And that, my dears, is an incredibly double-edged sword. You can’t sell people a myth — that is, not just a story, but a fairytale that embeds itself in culture so completely that it’s more or less ubiquitous — and then claim absolute control over every possible derivative.
Every entry in the Star Wars franchise is rated at the absolute highest PG-13. They have to be family-friendly in order to appeal to the four traditional Hollywood demographics (boys, girls, men, and women). So already, if a SW fanfic contains material that is unsuitable for a juvenile or young adult audience, it’s more likely to possess the kind of transformative elements that constitute fair use.
J.J. Abrams made it really clear before The Force Awakens even dropped that he saw SW as being “a boy’s thing and a movie that dads take their sons to.” He went on to say that he hoped moms could take their daughters to TFA, and tried to do some damage control on Twitter, but that interview made it clear that women were demographically second-class citizens.
That attitude is underscored not only by Rey’s fate in The Rise of Skywalker aka the capstone of the 9-volume Skywalker Saga, but the fate of the few female characters who figure prominently throughout the franchise:
—Rey is completely gutted as a character after TLJ and rendered an emotionally stunted, hollow vessel whose power was not innate, but rather handed down from a powerful biological grandfather. Ultimately she narratively existed to preserve the continuity of the Skywalker lineage.
—Leia is a decent supporting player in the OT (in which she is the lone female character of real significance), and in the ST becomes a mother who does not reunite with her lost child before dying.
—Padme is a decent supporting player in the PT (in which she is the lone female character of real significance), but ultimately becomes a mother who does not reunite with her lost child before dying.
—Maz Kanata is a decent supporting player in the ST, but is peripheral to the story and exists as a mentor/threshold guardian.
—Rose Tico, a phenomenal introduction in TLJ, was sidelined in TRoS due to negativity from toxic male fans.
—Amilyn Holdo leads the Resistance fleet in TLJ, but sacrifices herself to protect the fleet (i.e. is not reunited with them).
—Phasma is shiny.
This is the point where a dudebro would start scoffing to himself about how I’m ignoring other supporting characters (Mon Mothma, Jannah, et al.) — but those characters don’t define the narrative that is SW. Much as I love the inclusion of Carrie Fisher’s daughter Billie Lourd as Kaydel Ko Connix, for instance, her character wasn’t in itself a particularly pivotal one.
In terms of the SW meta, all Skywalker Saga films were written and directed by men. There is no direct female authorship anywhere in the 9-film set.
It’s also worth noting that all major Force-users who figure prominently in the 9-film canonverse (with the obvious exception of Rey) are male. Leia and Maz are Force-sensitive, but it’s narratively clear they’re not on the same level as Luke, Yoda, Anakin, Obi-Wan, Qui-Gon Jinn, et al. … and that’s just counting the Light side.
Furthermore, the ST relies so heavily on nostalgia for the OT that efforts to integrate female characters ring palpably hollow. Between the lack of narratively significant female characters throughout the entirety of the Skywalker Saga and the toxic masculine audience members who negatively impacted female representation in SW (the self-styled Fandom Menace, who attacked everyone from Rose Tico to producer Kathleen Kennedy), the message was clear: women, particularly older ones, are the least-welcome among the traditional four quadrants used to judge audience demographics.
Complex emotions are also something that falls beyond the purview of SW. In order to maintain its lowest-common-denominator approach, it does not stray beyond the emotional understanding of 13-year-olds — so anything more profound cannot be approached in the canonical SW-verse.
So the nature of the work in question re: the Skywalker Saga, we’re referring to a 9-installment narrative that:
aspires to culturally mythic status;
is devoid of sexuality, gore, drugs, complex emotions, or issues otherwise exceeding a PG-13 rating in order to maintain its branded four-quadrant appeal;
skews overwhelmingly toward male representation and the inheritance of male power (esp. as embodied by the DLF-named legacy saber), thereby making the primary target audience young males; and
lacks an authorship perspective other than a male gaze view.
In terms of Reylo fics, we are particularly dealing with the ST — so it must be noted that despite Disney/Lucasfilm possessing every advantage of time, money, and talent, they failed to produce a cohesive emotional storyline and conclusion for Rey of Niima Outpost and Ben Solo/Kylo Ren.
TRoS was a considerable financial and artistic failure on DLF’s part, and the fact that the 42-year-saga fell off the cultural radar within a few short months is evidence of the audience’s lukewarm reaction to the source text (not to mention the utterly underwhelmed critical response).
+ PURPOSE AND CHARACTER OF THE WORK
Now we’re turning our attention to Reylo smut, or fanfictions that address the sexual and emotional relationship between Rey and Ben Solo/Kylo Ren, everything from slow burn to Plot What Plot stories. These works exploded in popularity on fanfic websites like Archive of Our Own, to the point where they currently rank among the highest echelons of M/F-tagged ships (some 21K+ on AO3 alone as of this writing).
This popularity is in many cases an attempt to psychologically redress the perceived wrongs of the canonical ST, and explore the relationship between Rey and Ben/Kylo that was hinted at but never fully realized in the original text.
This isn’t just a case of dissatisfaction with a tragedy (consider the perpetual appeal of Romeo & Juliet or Moulin Rouge), but the fact that the relationship was written in a slapdash and inconsistent manner, Rian Johnson's emotional labor in TLJ ultimately undone by J.J. Abrams and Chris Terrio’s TRoS.
Imagine if at the climax of Episode IV: A New Hope, Han Solo & Chewie had shown up at the Death Star and knocked Darth Vader off Luke Skywalker’s tail (thereby enabling Luke to destroy the superweapon), only for the Millennium Falcon to be blown up, killing all aboard. The story would’ve felt incomplete, hollow without Han and Chewie there beside Luke to celebrate their victory with the Rebellion — and since TRoS failed to successfully close an analogous narrative loop, it created a massive sense of dissonance within the audience.
The mythic “return” in Episode IX was achieved by narratively cheating; since Rey’s core emotional relationship throughout the trilogy was with Ben Solo/Kylo Ren, his death precluded any true reunification.
Reylo smut fics also transform the starkly good-vs-evil SW landscape into an altered one that rather than being devoid of emotions is pervaded with them. Reylo shippers are commonly bashed as supporting an “obsessive” or otherwise unhealthy relationship — abuse usually leveled by toxic male fans unsettled by any hint of female agency in the male-dominated SW-verse — but such writers and readers are simply seeking engagement with a story that at least partly mirrors their own experiences.
This tension between those who wished to see Ben Solo redeemed and those who wished to see him executed (in DLF’s attempt to mirror the self-sacrificial death of Anakin Skywalker) seems to mirror opposing viewpoints within the SW fandom regarding the nature of the dyad. As established in TLJ, Rey and Ben/Kylo are linked, two halves of the same soul — yet the death of literally half of Rey’s soul isn’t addressed whatsoever in TRoS. For some, this broke the suspension of disbelief that they’d held for the SW sci-fairytale through the better part of 50 years; the fact that a 9-film storyline ended with soulmates being ripped apart without any narrative reason or even acknowledgement that it occurred is for them psychologically distressing, a betrayal that cannot be canonically rectified.
All prominent mothers in the Skywalker Saga are denied the chance to see their children grow up. All lovers are separated. If this is a fairytale about power, its final note renders it a grotesque one.
Even in the novelization, TRoS tried to sit on a fence between opposing demographics, baiting fans of the Reylo emotional core yet not fully committing to that storyline. Despite having a female protagonist, the ST displayed no actual understanding of the female existence, denying Rey and Ben/Kylo true agency and nuance — so for many non-male gaze fan writers, Reylo smut is a valid attempt to reclaim their own identity from corporate authorship that seeks to exploit them while denying them an authentic voice or presence within the SW-verse.
+ AMOUNT AND SUBSTANTIALITY OF THE PORTION TAKEN
Examined from a broad perspective, we find two primary categories of Reylo fanfics.
First we have fix-its, which accept a certain amount of the ST narrative but focus on a schism from the source text, breaking off to create what is essentially an alternate story-world. Many of these stories will “pick up” from the point of divergence from the canonical ST (e.g. Rey takes Kylo’s hand at the end of TLJ instead of reaching for the legacy saber) yet do not contain more than perhaps a few lines of referential dialogue from DLF’s actual stories.
If little or nothing of the primary text being “fixed” is directly copied in the new work, then this new story has a higher likelihood of being considered transformative and therefore fair use. The fact that fix-it fics exist specifically to adjust the shortcomings of the ST should be taken into consideration; as parodies (stories that inherently critique or comment on a source text) fall into the territory of fair use, the way in which a given fic riffs on the original can throw it squarely into acceptable territory.
Secondly we have AUs or fics set in alternate universes — and frequently this means that what’s primarily being adopted and transformed are archetypes, which certainly cannot be subject to copyright. The names Ben, Kylo, or Rey are used as indicators for broad-brush personality types; Ben, the softer masculine side, may either be an alternate or even separate identity from the emotionally volatile, Byronic Kylo, while Rey is a narrative force of equal power who matches him point for point in both incarnations (frequently making her more powerful than Ben/Kylo).
Frequently the narrative being played out in the transformational fic is one the ST hinted at, but — to Reylo fans’ heartbreak and consternation — did not directly address. It is the story of a girl with neither family nor fortune and a boy who possesses both discovering that they are not enemies, but rather love each other and can live as balanced partners.
If that sounds familiar, it’s because it’s the plot of a much older story: Jane Austen’s Pride and Prejudice. If we want to look even further back, the fairytale of Beauty and the Beast deals with those same story elements.
Of course, the aforementioned is but one version of a possible AU — yet when all that’s being adapted from the text is an interplay of core archetypes that’s been circulating since at least 1813, DLF can hardly attempt to lay claim to them.
This, again, is the double-edged sword of mythic use; in tapping into universal themes and archetypes, you cannot then try to hoard them. Just as the Jedi didn’t own the Force (per SW’s own canon), DLF cannot claim enemies-to-lovers stories between a dark, moody man and a bright, rising star of a woman who outshines her circumstances.
+ EFFECT OF FAIR USE ON THE POTENTIAL MARKET
Finally we come to the fourth prong of the test, which is the effect of the new text on the source text’s potential market. Given that DLF are geared toward producing four-quadrant narratives, specifically eschewing adult content, what really is the effect of Reylo fan smut?
Honestly, it doesn’t seem like there is any dent in DLF’s Beskar armor. In terms of potential future avenues, it’s overwhelmingly unlikely that DLF would consider producing their own SW-themed smut, since doing so would entail destroying their family-friendly image and thereby utterly undermining their own standing (not to mention any number of other movie franchises, multimedia channels, or theme parks upon which that corporate image is based).
So long as a Reylo smut story passes the other three prongs of the fair use test, its creator should be able to commercially profit from their work. Monetary gain isn’t the sole point determining factor; 1994’s Campbell v. Acuff-Rose Music, Inc. determined that commercial parodies can qualify as fair use. Transformation outweighs commercialism, so expressions of the Reylo story and relationship that comment on the OG text are analogously commercially permissible (read more of the case details here).
And certainly, were an author to change the names of the characters in their transformative fic (as with Twilight and Masters of the Universe/Fifty Shades of Grey, there should be hardly any way of even linking back to the source text at all.
+ SO IN CONCLUSION...
Copyright law regarding narratives is not meant to protect the ideas or archetypes expressed in a particular story, but the way in which they’re expressed. No one should be allowed to claim JJerrio’s TRoS script as their own but J.J. and Chris (not that I’d imagine anyone would really want to, including the two gentlemen in question) — but by the same token, no one can claim a fanfic’s authorship but the person who actually wrote the damn thing. And no one can dam the creative headwaters of myth, jealously guardiang a wellspring that doesn’t even belong to them.
Transformation is the key. And given that Reylo writers are often deeply dissatisfied with the ST, their myriad expressions of that ship in altered circumstances very often can be fair game, even commercially.
So write on, my frens. Grab those archetypes and play with them, invert and subvert tropes up the wazoo. Sexuality is so demonized in our culture that DLF have literally walled themselves inside a sanitized citadel, so run wild in the locus amoenus (or locus horribilis if you prefer). Go nuts.
And on that note, I think it’s time for me to take my own advice and get back to my WIPs!
DADDY’S KNOT | Omega Rey needs money to make her tuition payment. One night with a faceless Alpha and his twisted tastes promises to change that.
🖤 Chapter 2 | Don’t Make a Sound is live as of 25 August 2020
🖤 Chapter 3 | Say You’re Sorry is coming soon!
ALLIANCE | Fiery swordswoman Khthonia Fern teams up with mysterious bounty hunter Raz to rescue a kidnapped princess in a gritty original fantasy romance.
🖤 Chapter 7 | Hidden is live as of 29 August 2020
🖤 Chapter 8| Beyond will be live as of 12 September 2020
CRAVING KYLO | Programmer Rey Jakkusen agrees to become the BDSM submissive of tech titan Kylo Ren — but can she fulfill her contract without losing her heart?
🖤 Chapter 15 | Bark & Bight is live as 17 August 2020