Yes, as far as copyright law is concerned.
I wonder how close I could get to re-writing Harry Potter – not as a satire – without violating copyright? Change all the character names, don’t plagiarize, just keep the events the same. The difference is, of course, the Harry Potter people aren’t real, and we’re not dealing with facts. Ideas aren’t copyrightable, so, any real precedents?
Also remember in terms of using people’s pictures in public, it also depends on where it’s taken. The law uses the concept, reasonable expectation of privacy.
If I take a picture of a person standing on a street corner waiting for a bus, I can use this. Why? Because a person standing out in a public street corner has no expectation of privacy.
If I take the same person but photograph him in a locker room the results would be different, because in a locker room where you’re getting changed, there IS a resonable expectation of privacy.
So it all depends not only on the picture but HOW the picture is being used. A picture of a person used to sell a product would weigh differently than a picture of a person used on a non-commercial site.
There was a big legal to-do around John Guare’s Six Degrees of Separation over this sort of issue. The play was clearly closely inspired by the antics of David Hampton (the Will Smith character in the film version) and he sued Guare for having stolen his life story without permission. Google isn’t throwing up anything terribly detailed about the case, but I recall that the court ruled that Guare was within his rights as a playwright to adapt someone else’s life into a play.
Sure. The point about plots and themes not being protected by copyright is correct, but we should be clear… You could write a book about a boy named Henrry Potts who goes to a wizard school and probably be in the clear. But if you retold the story scene by scene, just using different names and different words, the author would argue that you have taken her original work and republished it with minor modifications. Under copyright law, this is what’s known as a “derivative work,” and the genre of fan fiction is usually in this category. Anne Rice has had some successful suits in this area, so did Sylvester Stallone, and there have been many others.
There is also trademark law to consider, if you use similar character names or titles that could create confusion.
Copyright law has an exception for parody, but a work of this nature generally introduces a new creative element. It’s very tricky territory. One of the most notable recent examples was the author of a “Gone With the Wind” parody called “The Wind Done Gone.” It was not a parody in the non-legal sense of the word – it wasn’t mocking the author or original story – but basically a re-telling of the same story in a different style. A similar suit arose over a similar re-imagining of Nabokov’s “Lolita” from the girl’s point of view: “Lo’s Diary.” In the latter case, the author had to give half of the royalties to the Nabokov estate. In the former, a settlement allowed the author to retain rights and publish the book, but had to give up a percentage of the profits.