Copy That

Pretty much every illustrator worth their salt has what is euphemistically called a “swipe” file. A bunch of images torn out (swiped) from magazines or other printed material that can be used as reference when creating a new illustration. Need an image of a hand holding a mug—find something in your swipe file. A picture of a person walking a dog—go to your swipe file. A young child laughing—swipe. You get the idea. Instead of trying to find a model and drawing from life (or your own photograph), illustrators use swipes. Illustration is a business. Anything that makes the process easier and more productive is a good thing. Time is money. Being efficient is smart business.

But there is a catch. It can’t be obvious what original photograph was used as reference. Like when you were a kid in school and had to write a report. The key was to read the encyclopedia entry (or now, I guess, Wikipedia) and then, this was the hard part, put that info into “your own words.” It wasn’t easy to do in fourth grade (really, how many ways can you say “George Washington was born in 1732, and his mother was named Mary”). It is not easy now. Good illustrators know how to use their reference material, but not tip their hand about exactly what they are referencing. They take the swipe, and then put it into “their own words.”

When I was at Commodore, we hired a lot of illustrators for both feature articles and department pages. Stock illustrations were not an option at the time (and online stock was not even a pipe dream). We splurged a bit on some of the feature illustrations, but for the rest, our motto was ”good, fast, cheap.” And we had a bank of illustrators that we knew could deliver. There was one in particular that we hired almost every month. His stuff was good, well executed, and followed our directions to the “T.” We later realized that for more than a few of his illustrations, it was super easy to figure out where his “inspiration” came from. Later on, flipping through a magazine, we would find a photo of the exact same figure, in the exact same pose, wearing the exact same outfit as in the illustration he had done for us. Luckily no one else ever noticed or let us know. (We eventually started asking him what he was using as reference.)

So when is copying just copying. And when it is fair game (or, as the case would be, fair use). And who decides? Turns out in the US, the Supreme Court gets the final say.

And that is what they did this past May as reported in CNN. In a case closely watched by the creative and artistic communities (and probably no one else), the Supreme Court decided that Andy Warhol’s illustration series of the singer Prince violated the copyright that was held by the original photographer. There were a whole bunch of arguments about “fair use“ and “derivative works,” but in the end, basically they ruled (and this is putting it in my own words) Andy Warhol’s illustration would not have existed without the foundation of the original photograph. And since both works existed in the same universe and for basically the same purpose, using the photo was something that Warhol was not allowed to do. Copy that.