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I’m not so sure about that.

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.

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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.

Really? It looks like some bad Warhol take on the Vermeer original.

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.

https://www.scotusblog.com/2022/10/justices-debate-whether-w...

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