Reference Files: Fair Use or Copyright Infringement?
One of the most frequently asked questions is whether the use of another artist’s imagery is an infringement of copyright. In particular, illustrators often maintain files of images to fulfill assignments with deadlines too short to permit contacting anyone for permissions. The names for these files—the sedate “reference” file, the offhand “scrap” file or the larcenous “swipe” file—suggest the ambiguity felt when using such imagery. After all, the people who made that imagery are also artists and copyright proprietors like the illustrator who wants to use it. Increasingly, illustrators looking for references can casually download such artwork from the Internet and use powerful digital imaging tools to seamlessly incorporate referenced pieces into their own work. In this increasingly digitized artistic universe, understanding the scope of an artist’s copyright becomes especially important to the modern artist.
An artist suing another for infringement has to prove that an ordinary person would be able to tell his work was copied. The artist can then secure money damages unless the copying was trivial or insubstantial, or it was a “fair use.”