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 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.