Therein lies the rub. You're looking for a bright line and we can't provide that for you here. You must retain your own attorney to review the artwork. The standard for infringement is "substantial similarity." You need to pay for legal advice on that determination. You may be creating a derivative work, which would be an infringement of the copyright.
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Maybe. Copyright only protects "original" works. To the extent that your work is not "original," it will not be protected. Whether or not your work differs enough to be considered original would be a question of fact, perhaps for a jury to decide, if you were to attempt to enforce a copyright in the work. You might also have to argue that your work has substantial differences if you are sued for Copyright Infringement by the copyright holder of the preexisting character that is the basis for your work. Because the answer to your question would greatly depend on an experienced eye comparing your image to that of the preexisting character, you should probably consult with an IP attorney for a more complete analysis.
The above represents a general discussion of legal principles and does not establish any attorney-client relationship. If you believe you may need help with a legal issue, you should seek an attorney to personally advise you according to your particular set of facts and circumstances.
If the author of the second character had access to the original and the second is "substantially similar" then no copyright attaches to the second character. 17 U.S.C. 103. In fact, the second would infringe the copyright in the first [that is, the right of -- at least -- reproduction].
The above response is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.
Characters cannot be copyrighted. (Courts keep telling Daniel this, but he refuses to listen.) Whether the image infringes on whatever work contained the original character, will depend on how similar they are.
The above is general legal and business analysis. It is not "legal advice" but analysis, and different lawyers may analyze the question differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in New York and Florida.
If the characters are distinctive enough like most of the Disney ones will be, then this is likely going to be a problem.
Of course, it would require us to know exactly what you intend. I suggest that you consult with a lawyer in private and discuss your objectives in more detail. You can start by calling around to several for a free phone consultation, get some insights then pick the best fit to work with.
DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed with the law firm of Natoli-Lapin, LLC on the basis of this posting.
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