If the original art is still copyrighted, and you’d start selling your hand drawn variation, you’d totally be violating the copyright.
To make it concrete, imagine the latest Disney movie poster. You redraw it 95% close to the original, just changing the actual title. Then you sell your poster on Amazon at half the price of the actual poster. Would you get a copyright strike ?
The scenes à faire doctrine would certainly let you paint your own picture of a pretty girl with a large earring, even a pearl one. That, however, is definitely the same person, in the same pose/composition, in the same outfit. The colors are slightly off, but the difference feels like a technical error rather than an expressive choice.
Even if it is an expressive choice of the new artist, if enough of the original artist's expressive choice remains, it could still be a copyright violation. Fair use can sometimes be a defense, but there are a lot of factors that go into determining whether something is fair use.
That’s a really apt comparison, since the Supreme Court just heard Andy Warhol Foundation for the Visual Arts v. Goldsmith, which hinges on whether Warhol’s use of a copyrighted photo of Prince as the basis for “Orange Prince” was Fair Use.
Warhol’s estate seems likely to lose and their strongest argument is that Warhol took a documentary photo and transformed it into a commentary on celebrity culture. Here, I don’t even see that applying: it just looks like a bad copy.
The photograph of the art, which will be more recent, might have copyright protections.
It looks like it wouldn't in the UK, probably wouldn't in the US but would in Germany. The cases seem to hinge on the level of intellectual creativity of the photograph involved. The UK said that trying to create an exact copy was not an original endeavour whereas Germany said the task of exact replication requires intellectual/technical effort of it's own merit.
