Is copyright violation the new guerrilla marketing technique du jour? A decade ago, hotmail taught us the power of viral marketing. Now it seems like the youtubes of the world are teaching us the power of "controversy marketing":
//edit: Nevermind. Ignore this comment. I've been corrected by folasm87 & it turns out I misread the johnrob's comment and applied what he was saying to the wrong party.
Of all the things lacking brand recognition in the global market, Harry Potter is not one of them. I don't think this is the case here.
If authors want their works to be available they have numerous outlets for doing it right. One of the good ones is the Baen Free Library - http://www.baen.com/library/
Ken Follett (one of the complainants in the article) wrote a novella for the games Starglider and Starglider 2 in 1986. I asked him permission (in 2003) to put these novellas on my gaming novella site (a collection of gaming-related literature).
He said, sorry, I am re-publishing the Starglider 1/2 novellas in a compilation. So I left his novellas out.
Every novella on the website is there with permission.
Another person who said No was RPG legend (USA, not UK) Steve Jackson (for the Stonekeep book).
So if I can keep honest, how come Scribbers can't?
Note: I left out the URL for the novella site, because it has my full name in the URL.
The difference is that you are choosing the documents to put on your site. Scribd does not choose the documents to put on their site, users upload them.
So if you ended up with pirated material on your site, you would be completely responsible. But that is not the case with Scribd. Anyone can submit material to Scribd, so people submit pirated material.
I believe that Scribd would qualify as a safe harbor under the DMCA. So all they really need to do is respond to requests to take down pirated material. Veoh was once sued for infringing copyright. The judge ended granting a summary judgement in favor of the defendant on the basis that Veoh was just providing user-submitted content and that Veoh did not even supervise the files that were uploaded. I am reading that as saying that if Veoh actively checked user uploads for pirated material, they might might have lost the court case or at least had their motion for summary judgement dismissed.
That said, Scribd does have a problem with piracy.. One of my first introductions to Scribd was when I was searching for excepts from a book and found the full book on Scribd.
It's not a blank check to create a site full of blatant infringement. You have to be very naive to think Scribd really does everything they could to prevent copyrighted content from being uploaded. The kindest assumption would be that they're incompetent, but that's probably not the case. They're just twiddling their thumbs about it because it's the main driver of traffic. Hopefully they've retained some good lawyers.
Scribd promised to be pro-active when attacked by the SFWA, which I thought at the time was exactly the wrong tack, for precisely this reason: once you've set up to monitor the system, you can't use safe harbor as a defense any more.
She had every right to do that. Those characters are her personal creations, and while she was fine with a free encyclopedia online, she didn't want anybody to profit off of her creations.
While I like the mindset that says you should be open with your creations, I respect the one that says your ideas are your own, and Rowling subscribes to that. I don't like this kneejerk attitude against people who want to retain rights to their work.
"While I like the mindset that says you should be open with your creations, I respect the one that says your ideas are your own"
I think one of the strengths of the American IP system is that, while you can call your ideas your own if you want to, you don't have the right to control their reproduction or distribution. To quote the 1976 Copyright Act:
"In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."
The only way you are allowed control over the distribution of an idea is through a patent, which is only granted under certain circumstances and for a fairly limited time. This concept that ideas are not subject to individual ownership, but rather common ownership, has myriad benefits, among them the right to critique ideas and a bias toward spreading good ideas as much as possible.
Of course, in the particular case of characters and story in a book it's harder to say what is idea and what is expression of that idea. To quote wikipedia, "Courts disagree on how much of the story and characters of a copyrighted novel or film should be considered copyrightable expression."
So that means Rowling has no control over her fantasy universe, even when it's just reflecting what she wrote?
I think that people should have some rights in terms of expanding on what she wrote, for instance. But that encyclopedia was just reiterating what had been written in the seven novels. It wasn't adding anything new.
(As for character control: Rowling spent years building her universe before writing a single word. I think it would be pretty awful if she didn't get some sort of recompense for the people who use those years of planning and make a quick buck off of it. But I'll admit that I don't know whether or not copyright law protects something as conceptual as a character design.)
Perhaps, but the people who created that encyclopedia did not have access to her universe-building notes. They read her novel and then put in their own work collating all the information within and compiling their encyclopedia. I don't know how extensive that encyclopedia was, but if it's at all comprehensive, probably a fair amount of work went into it. Hence, "quick buck" might be an unfair characterization of that work. And since they did not have access to Rowling's notes, why should they have to pay her anything for the work they put in? As a matter of fact, I'm sure they've already paid her some dues in the form of buying her novels.
Let's take an analogy and assume JQuery does not have documentation. I download a copy of JQuery and write an API documentation for it. Should JQuery have the right to stop me from selling that documentation?
"So that means Rowling has no control over her fantasy universe, even when it's just reflecting what she wrote?"
That is right, and it's by design, as long as you're talking about the concepts and ideas of her universe and not their specific expressions. But again, as I said, it's not clear where the line between idea and expression lies with particular parts of a work of fiction.
The free exchange of ideas is essential to the working of a free society. I can't imagine that much good would come of making the distribution of all ideas subject to the will of the people that came up with them.
I guess it depends what you mean by "concepts and ideas", then. For me, the encyclopedia would cross a line, because it's talking about the plot and the characters using excerpts directly from the series, but "The Bible According To Harry Potter" is an original creative piece that Rowling shouldn't have veto power over.
That's wrong. Fictional facts are considered expressions, not ideas (See the James Bond and Seinfield cases).
JK can control any fictional facts from her work, like Hogwarts, or the characters.
She can't control the underlying ideas, such as a wizard school, or an orphan boy hero.
"Fictional facts are considered expressions, not ideas"
My understanding is that fictional facts must stand the tests of originality and specificity. Neither unoriginal ideas, nor vague characters/settings have copyright protection. I believe that exactly when a character or setting becomes original and specific enough for protection has been interpreted in different ways by different courts.
Actually, distribution and COPY (i.e., reproduction) rights are at the heart of copyright law.
She has every right to control distribution of her works.
Do not confuse the copyrightability of ideas with the copyrightability of an expression.
BTW, every court that has seen this sort of case has ruled that a fictional fact or character is considered an expression, not an idea.
IDEA = boy goes to a school for child wizards
EXPRESSION = harry potter (a specific example of the idea)
"Do not confuse the copyrightability of ideas with the copyrightability of an expression."
I'm pretty sure I wasn't doing that, but I don't think you read my comment very carefully or followed the link I posted, so I'm going to assume you just misunderstood me.
"every court that has seen this sort of case has ruled that a fictional fact or character is considered an expression, not an idea"
I interpret Warner Bros. Pictures v. Columbia Broadcasting Sys., 216 F.2d 945 (9th Cir. 1954) to have gone the other way. Do you disagree?
In writing (and I imagine in programming as well) every "expression" has been mimiced by some other author somewhere. Asimov has done extensive writing on this issue, and as he makes clear, it's not nearly as black and white as you are implying.
But an "expression" as a unit is meaningless. The value comes from putting it all together as a whole, which is several orders of magnitude harder than figuring out each instance separately.
Let's make an analogy to software. Let's say there is this amazing piece of software that everyone loves, and then the developer decides to stop developing it. Should someone else have the right to expand on it, since so many people stand to benefit? Harry Potter is a cultural icon, and the Encylopdia increased the value of it. The writer of it was a huge fan who wrote the entire thing as a side project. There was no corporate backing until he tried to publish it, it was all done out of a love for the characters.
Wow, this comment is -1 as well? What's with the new people on HN today.... go back to Reddit/Digg please. As the request of the below poster, my rational is that my view, while not the same as yours, is reasoned and made clearly.
Harry Potter is first and foremost a book series. Anything more is based on the author's benevolence or interests.
Once Harry Potter is published, it's out there and it's done. The series lies in those printed novels. That doesn't change. If Rowling wants to let people add more, she can, but it is certainly not a requirement.
Similarly, I absolutely have the right to suspend a software project of mine and leave it hanging, if that's what I want. Perhaps I don't want something associated with my name being sullied by other people's work. Maybe I want it to be associated with me and only me.
The fan was terrific, but he tried to make money. Rowling told him she was against that and he did it anyway. So it wasn't like she lied to him.
By the way: I downvote people as soon as they ask about why they're being downvoted, unless they're giving a good rationale for why they shouldn't be downvoted. Maybe that's why the negativism?
Of course you can suspend or erase any software you write at any time. I believe this changes if your software gains widespread cultural importance and acclaim. There are responsibilities that go along with creating something so important. I swear, if Take Me Out To The Ball Game was written today, we wouldn't be able to sing at baseball games because of copyright.
Happy Birthday is copyright, and people using it in movies pay a royalty.
Find me the thing that says that if I make software, I lose rights to it once it gains "importance and acclaim." Perhaps I can't ERASE software, but are you saying I can't stop IMPROVING it just because it becomes big? Because that's just silly.
Find me the thing that says that if I make software, I lose rights to it once it gains "importance and acclaim."
There is not anything that says this, that's just the way I believe it should be, for many reasons. Put simply, I don't think anyone has the right or the ability to keep complete control over something as large and important as Harry Potter.
Perhaps I can't ERASE software, but are you saying I can't stop IMPROVING it just because it becomes big?
Never. My claim is that you shouldn't be able to stop others from improving on it. I know definitions of "improve" are going to vary across the board, but the Encylopedia example is something that is an obvious improvement. What if Linus didn't want anyone else to improve on Linux?
There is not anything that says this, that's just the way I believe it should be, for many reasons. Put simply, I don't think anyone has the right or the ability to keep complete control over something as large and important as Harry Potter.
That's fair enough. That's essentially what I'm arguing too, but in reverse. I guess that's just a matter of opinion.
What if Linus didn't want anyone else to improve on Linux?
Then it would have died out in favor of some open source thing. But it was Linus's choice. Say a writer could gain a massive popularity surge by open-sourcing her world and characters. She'd have an edge over Rowling because Rowling won't do that. But either way, it's not the law allowing her to get ahead, it's the market. If Rowling is ignored for some more open world, then the market has spoken. If, however, her ideas stay big despite her retaining outright control, then there's no incentive to take them from her, and my opinion is that it's morally wrong to.
If Linus had kept Linux closed source, people would have still been perfectly within their rights to write a manual about how to write programs for that operating system as long as they didn't sign a NDA. I doubt anyone who read HP signed an NDA...
I like your comment. I think once something enters our culture we all really own it regardless of who created it, regardless of copyright law. (Read Free Culture for a much better and nuanced explanation of this.)
So J. K. Rowling, who spent seven years developing her universe before she even began writing her first novel, who spend inordinate amounts of time developing her systems, her characters, her plot, the morals and concepts she focused on... once she finished it, that's yours? You own some sort of a right to it?
You have exactly as much a right to Rowling's universe as she wants you to have. That begins with her novels: she has decided that you have a right to read her stories once you pay money for her books, or once you access her books in some way that involves, somehow, her making money. Once you've done that, you're free to discuss those ideas, you can talk about them with people, you can write about them. But that doesn't give you a right to alter or modify her writing in any way, and I don't think it gives you a right to alter her works for commercial purposes in any way. If you want to make a free online resource, go for it, but if you're going to make money over 17 years of J. K. Rowling's life, there may be a problem. (It's better phrased: she has the right to give you a problem.)
Interesting concept: perhaps authors could sell licenses to enter a world's commercial universe. Asimov made a universe for other writers because he wanted them to keep out of his own, then never wrote a story in that second universe himself. Perhaps an enterprising writer could create these huge worlds and scenarios and license them for profit. That would make for a fascinating take on the idea of creative world design that we've already seen explored with things like Dungeons & Dragons.
>So J. K. Rowling, who spent seven years developing her universe before she even began writing her first novel, who spend inordinate amounts of time developing her systems, her characters, her plot, the morals and concepts she focused on... once she finished it, that's yours? You own some sort of a right to it?
Jefferson had it right about copyright from the beginning. It's got to be a balance of incentives for the creators and good for the public. Yes, it's good to give artists incentives to create, but only so long as the public benefits. The original copyright limits years may have been a reasonable balance.
Current law is insane. Extending Walt Disney's copyrights even further past his death don't retroactively increase his incentive to create goods for the public. On the contrary, they deprive the public of what he has already created. Similarly, Rowling is already a billionaire. She has been well compensated for her work. There is no moral hazard in letting the public use it. The current system actually gives her less incentive to create anything new, because she (and her estate) have been granted a monopoly on her work until far past her death.
Why can't the public create their own icons? This is the central point of my argument. I know that Disney stops people from taking Walt's original concepts. But is that a bad thing? What concepts did Disney steal? None: he made his own. Other people can do that too.
The idea of capitalism is that if somebody, say, changes the face of literature and sells more copies of her book than anybody else sells copies of anything, then she's entitled to spend the rest of her life doing nothing, because she put that much work in. So even if that was the excuse for ending copyright, making Rowling go back to creating things, it's unjust to force her to do so. As it happens, she's going on to write new things, because she didn't write to become a billionaire, she wrote to write.
>I know that Disney stops people from taking Walt's original concepts. But is that a bad thing? What concepts did Disney steal? None: he made his own. Other people can do that too.
This is completely wrong. Nearly every famous early work of Disney's was "stolen" from others. Among the more famous are Snow White (1937), Fantasia (1940), Pinocchio (1940), Dumbo (1941), Bambi (1942), /Song of the South (1946), Cinderella (1950), Alice in Wonderland (1951), /Robin Hood (1952), Peter Pan (1953), Lady and the Tramp (1955), Mulan (1998), Sleeping Beauty (1959), 101 Dalmatians (1961), The Sword in the Stone (1963), and The Jungle Book (1967).
The first iteration of Mickey Mouse, called "Steamboat Willie", was copied directly from Buster Keaton's "Steamboat Bill."
This is an excerpt from one of Lawrence Lessig's speeches about the topic:
"It was a parody, a take-off; it was built upon Steamboat Bill. Steamboat Bill was produced in 1928, no [waiting] 14 years--just take it, rip, mix, and burn, as he did [laughter] to produce the Disney empire. This was his character. Walt always parroted feature-length mainstream films to produce the Disney empire, and we see the product of this. This is the Disney Corporation: taking works in the public domain, and not even in the public domain, and turning them into vastly greater, new creativity. They took the works of this guy, these guys, the Brothers Grimm, who you think are probably great authors on their own. They produce these horrible stories, these fairy tales, which anybody should keep their children far from because they're utterly bloody and moralistic stories, and are not the sort of thing that children should see, but they were retold for us by the Disney Corporation. Now the Disney Corporation could do this because that culture lived in a commons, an intellectual commons, a cultural commons, where people could freely take and build. It was a lawyer-free zone."
To address your second point, "the idea of capitalism" does not necessarily require giving anyone permanent, state-enforced monopolies of anything, no matter how well written it is. Any justification for copyright has to stem from a benefit to society. Strong arguments can be made for giving creators temporary monopolies of a limited scope, but permanent monopolies are bad for both innovation and the public.
3rd party how-to-use X guides? Software training videos? The content at gamefaqs? Microsoft office for dummies? Cliffnotes? Sparknotes? Test prep? Movie reviews?
I would take the controversial opinion that if somebody's going to make a Sparknotes for a novel I wrote, they need my permission. Critical analysis is one thing: summarizing what I wrote in bulk is another thing entirely. The lengthy summaries of each Harry Potter novel I see as slightly shady.
Authorial control means you're allowed to give permission, though. If I make a tricky program, it's in my interests to let you write a how-to-X book. But it should still be my choice.
Movie reviews contain very little summary. Most of what's in a review is opinion based around that slim summary. So that's perfectly fine.
Because a Sparknotes is just regurgitating what I've written. I feel I should be allowed to deny people who want to take my hard work and simplify it while removing its merits. Especially in writing, where text is the only thing that matters: while text describing a movie might add some sort of aesthetic value, text describing text rarely does so.
I would give permission, mind you, because I think it's fine to distribute my work like that. But if an author didn't want that, I'd want them to have control.
I would take the controversial opinion that if somebody's going to make a Sparknotes for a novel I wrote, they need my permission.
I feel I should be allowed to deny people who want to take my hard work and simplify it while removing its merits.
I've cut away some filler, so I'll ask again: do you have a reason to want this -- some enforceable veto ability over sparknotes -- that doesn't reduce to wanting it because you want it?
Yeah, you've answered my question: you want it because you want it.
Your opinion is: "I feel that I should have final control over my creation" (which, apparently, extends to summaries and commentaries, etc.).
When asked "why do you feel you should have final control over your creation", your answer appears to be (dissapointingly) "because it's my creation, and I feel like I should have final control over my creation" (in the broad sense, apparently).
Commentaries, no. Summaries, yes. If you're adding your own creative action to what I've done, then the resulting work is yours. So, as I said in another comment, that Gospel According To Harry Potter is a creative work unto itself. It creates things that I didn't create initially. But Sparknotes isn't doing that: it's just summarizing what I've written, and while that takes work, it's not creative work, it's mechanical summary.
Fantasy adds a new element, because a huge part of fantasy is the mechanics of a created world. I think that a fantasy writer ought to control their world. If Rowling wants people to stay away from that creation, it's her right, in the same way that a programmer ought to have the right to stop people from taking their source code and making new things with it if they want. If I hacked my iTunes.app to give it new functionality and then sold it as a new program, I'd get nailed by Apple. That's completely good.
I should have final control over my creation because it's mine. I have every right to it. I support the actions of people who want to maintain their creative control. What other explanation is sensible?
I could argue with some of your raw assertions (what constitutes creativity, and what doesn't), but I won't, b/c that's rather besides the point.
I am interested in a very simple question: why do want "final control over your creation" (in the sense that, if you had your way, you could say NO to someone writing a sparknotes of it, and the state would step in and prevent that person from publishing the sparknotes)?
All I get back from you are either non-sequiturs (such as your opinion on what is or is not creative work, or the mechanics of fantasy writing, and so on) or reassertions of what you want, without explanation.
We're talking past each other so this is my last comment to you.
I'm ignoring your first two paragraphs because they don't even address what I'm asking you: "why do you want final control over your creation" (in the sense that, if you had your way, you could say NO to someone writing a sparknotes of it)?
Answers that would be sensible:
(a) "I place an extremely high value on notions of purity-of-vision, and believe that a creator should be given a wide 'breather' during which time they may elaborate upon their vision without outside interference; third-party works run the risk of polluting the original creator's vision and thus the creator should be protected from those works unless explicitly opting out of them"
(b) "I place an extremely high value on notions of purity-of-vision, and believe that only the original author of some work knows what that work was intended to accomplish and whether or not some related third-party work poses a risk to the work's ability to accomplish that"
(c) "I believe an overly laissez-faire outlook towards the production of third-party 'add-ons' around a particular work may have a deleterious effect upon the incentives of creatives to create; in addition to the economic incentives that third party works might compromise, there's also the risk of inducing psychological disincentives to publish one's creations"
...none of the above are explanations I'd necessarily agree with -- and all of the above would ideally be tempered by an appeal to some kind of utility metric ("I believe the benefit of granting such abilities would outweigh the costs such abilities would impose") -- but all of the above are sensible explanations for why you might want such control over the actions of others.
What I have gotten back from you in the way of "explanation" is materially the same statement repeated thrice (if at first you don't succeed, say it diff'rent!):
(1) I should have final control over my creation because it's mine.
Yeah, and I've been asking you why. LOL. I think everyone knows that's what you want.
(2) I have every right to it.
Which in context is an emphatic re-assertion of the preceeding claim ("THEY ARE!" to the previous sentence's "The beatles are the best band ever!"). It contains no elaboration or additional justification of your claim.
(3) I support the actions of people who want to maintain their creative control.
Strike the third! I think (1) and (2) already established (3); what did you think you were communicating in (3) that wasn't already contained in (1) and "YES, INDEED"-ed in (2)?
What other explanation is sensible?
I've given you examples of sensible explanations; you've given me no explanation, along with some ramblings as to how you rate the kinds of creativity you see as being involved in various tasks.
Rowling had sensible explanations in her complaint: you can find it here
She asserts: various and sundry claims of copyright infringement, but she also gives explanations for why she wants to enforce her rights (cf paras 2+3):
- concern for confusion on the part of the reading public (they might think she was involved in the lexicon or endorsed the lexicon, when that wasn't the case) (solved; publisher changed title and cover design)
- concern that her own plans to write an encyclopedia might be hampered by the existence of the lexicon (found not to be an actionable item)
And, contrary to your aesthetics, even though her team won the "lexicon" case, the decision came down not as some kind of broad assertion of the principle that creators of fantasy worlds can exclude others from those worlds at whim; it came down to what amounts to "this would've been fair use if only the lexicon hadn't lifted quite so much in verbatim" (my interpretation, you can find the full judgment here: http://cyberlaw.stanford.edu/system/files/Lexicon+Order.pdf ; it's a very good read).
You remind me of nothing else than Oscar Crease; good-day, sir!
I don't know whether to be impressed that you wrote all that, or irritated that in all of that, you ignored that I was saying, mocked me, called me names, and then treated yourself like you were the victor.
I wasn't explaining Rowling's reasons for protecting copyright. I was explaining my own. That's an opinion that has nothing to do with anybody else's view of it, or the existing law. It's my own opinions.
Now, you could have debated those opinions and we could have an argument about just how much control my labor entitles me to. Instead you ignored that, gave your own "acceptable" answers, and then called me names.
In the interest of charity and good-naturedness I'll address your points and explain myself further.
It was clear from the outset you weren't interested in or thinking about "existing law" (because you were claiming to have rights that you don't, under existing law).
It was also pretty clear that you had a pretty strong opinion as to exactly what level of control you'd want to have: I would take the controversial opinion that if somebody's going to make a Sparknotes for a novel I wrote, they need my permission.
I asked you a couple different times why you would want it to be that way -- what's your motivation for wanting the world to be such that, if someone's going to make a Sparknotes for a novel you'd wrote, then they'd need your permission -- and you'd never give a straight answer.
You clarified your position slightly -- some kinds of works referencing yours would be ok (like the bible according to harry potter), but others (like sparknotes) wouldn't -- but never actually explained why you adopted that particular position.
From what you did write I could probably infer your underlying outlook: it's a little hazy, sure, but basically there's some objective sense in which the contents of works by a particular author are or are creative, and when a work is (1) insufficiently creative and (2) heavily dependent on some other, actually-creative work then control of the work is forfeited to the actual creator of the work's underlying content; under such a system authors would have considerably more control over the actions of others than they would in the present system.
If that's not your outlook, no worries: I said I was trying not to put words in your mouth, and that's why I never brought the above up and instead waited for you to explain the connection between your ramblings about relative amounts of creativity and the amount of legal control you wished you had over what other people (hypothetically) did that referenced your (hypothetical) works.
I got more and more exasperated when you failed to explicitly draw the connection: why ought such-and-such notion of creativity ought to be granted legal protection above and beyond what it has now and why not this other kind of creative effort?
And I got more and more exasperated because, on top of all that, you never even answered the question I asked from my very first post: not "why do you think such-and-such amount of control is justified" -- though you never answered that, either -- but "why would you (personally) want such-and-such control?"
I even proffered some hypothetical explanations: maybe you'd "get something" (economic) if you had that level of control; maybe you just wanted it on account of aesthetics or moral code; but, why?
I'd even have been happy with some self-awareness of the "yeah, I just would prefer that level of control, and don't have a strong sense why I want that" sort, but no dice.
So: color me disappointed, and hence the exasperation. I will say that, if I've gotten your outlook approximately correct it's pretty alien to me, as any attempt to establish even a quasi-objective notion of creativity involves making a lot of decisions that themselves will depend upon heavily on unstated assumptions.
For example, elsewhere you describe a (hypothetical) sparknotes for one of your (hypothetical) writings as entirely dependent upon your work, adding nothing and (possibly) taking much away.
That's your opinion; but, like the dude says, "that's just, like, your opinion, man." Here's some of the stuff that that outlook minimizes:
(1) someone writing a sparknotes for your novel is writing it because your novel has become studied sufficiently often for there to be a healthy market for study aides; that your novel has become studied sufficiently often for their to be a healthy market is NOT solely on account of your novel...it's a complicated byproduct of the specific contents of your market, the dynamics of reviewers and academics, the cultural mores of the time, and so forth.
So, already we have a complication: you want to claim that the sparknotes only has value on account of your novel; rather, it has value on account of your novel and the socio-cultural dynamics surrounding your novel, not all of which (to put it mildly) are within your control.
I can understand that you might want to have veto ability over the sparknotes on account of some vague notion that "it's entirely dependent upon my novel for existing", but to go from that being "just your opinion, man" to some kind of enforceable quasi-objective fact means completely discounting the responsibility that the reading and critical audience had upon your works' status; if they hated it, there'd be no sparknotes either.
(2) someone writing a sparknotes can easily claim they're more like the "bible for teens" (the one that has Jesus saying like "be awesome to each other" and "party on, dudes!" when he comes down from the mount): they adapt a particular work (your novel) intended for a particular audience (the general reading public) in a particular context (the general social setting of "literature", or some genre fiction market if that's your call) for another audience (students) in a different context (educational courses).
Your notion of "creative" may not square with what they're doing, but for that difference of opinion to become legally enforceable is essentially equivalent to legally drawing a distinction between some platonic realm (that's where art lives) and the practical world, and granting claims into the platonic realm priority over claims of utility.
It's akin to when the nose-to-the-grindstone geeks claim "twitter's just email lists on the web" -- they're right, but they're right only by ignoring the particularities of the audience and the presentation and the overall framing -- except it'd be codified as law.
(3) there's yet another assumptional axis on which creativity might hinge: the notion of what're ideas that're novel and what aren't have huge unstated underpinnings.
I'll beat up on JK Rowling a bit. For her work to be creative, all of the following ideas must be deemed freely copyable (in the sense of not calling into question the notion of the extent of creativity of the underlying work):
- the notion of crafting a limited-duration children's book series with a coherent plot arc. As long as I've been alive scholastic et al have loved the notion of book series (and for adults there's stuff like fantasy novel series), because by not finishing the entire plot all at once they create an audience eager for sequels. viz, the Prydain books, the Darkness Rising series, literally hundreds more.
- the notion of children with special powers going off to a parallel, hidden world for training in those powers, and eventually going on adventures and so forth, with the development and mastery of those powers -- and their eventual use in matters of significance -- making the book some sort of sublimated bildungsroman. Also old hat; the l'Engle books, possibly Narnia (though that lacks powers it otherwise fits the bill), plenty more.
- the notion of boarding schools with "houses" of distinctive character, etc., which is a mishmash of the boarding school tradition and the oxbrige system
...and I could go on. All of those notions are currently "fair game", sure, but the point is (1) to start ranking things by creativity you have to draw lines between what's fair game and what isn't and (2) there's too many such decisions to ever explicitly make them all and thus (3) any such ranking-by-creativity will have plenty of those "decisions" made implicitly but (4) in your scheme those implicit, never-debated "decisions" would have vastly increased legal heft.
And stuff like the above is why I don't cotton to an outlook in which creativity not only gets somehow "ranked" but in which that ranking takes on a great deal of legal heft (in the form of lawsuits and cease-and-decists and so forth); have all the aesthetic preference you want, plz, but keep them out of my laws if you don't mind sir.
This is my absolutely final participation for a few days; gettin' too heated in these here parts.
Because they rely entirely on my creation to exist, and they add nothing beyond what I've made. All they do is take my creation and remove some things. They add nothing to the procedure.
This gets into a sticky argument of exactly how you define value. For me it's adding something that isn't already there, and so if all you're doing is summarizing without contributing anything new, then even though it holds value it's not really making an original piece of work.
But Sparknotes are not just a summary, they are also an analysis of the work. Consider the following table of contents for the Sparknotes of Harry Potter & The Sorcerer's Stone:
Context
Plot Overview
Character List
Analysis of Major Characters
Themes, Motifs & Symbols
Important Quotations Explained
Key Facts
Study Questions & Essay Topics
Quiz
Suggestions for Further Reading
An author has no more right to claim ownership of this than they do any review/critique of their book.
