Legal Question in Intellectual Property in Tennessee

Re: Artist Rights

The way I see for you to do this is to draw an event rather than a horse. The horse's name and image are likely to be protected by trademark laws as indicating some association with or sponsorship of your work by the hosrse's owners if done merely as a picture of the horse. However, if you are drawing "Citation wins the triple crown" or similar event, then you are merely drawing a news event. The closer you get to just a portrait, the more you take a risk. The closer you get to just portraying an event, the more likely you are to be free to do it.

One final point...you are always in a position to be sued. The question is how can you best do this so that you discourage others from thinking they should sue you.

A final step should be taken for your own protection, and that is to obtain a copyright registration on your artwork, so that you can prevent people from copying your artwork and so that you have something official looking to help convince those that might sue you that they cannot win.

If you need help with any of this or more detailed device, contact me.

Re: Artist Rights

You wrote: "I understand through websearching that there are 3 horses that have had their image trademarked. I wasn't aware you could trademark an animal." Gee, neither was I, and sometimes people call me a "trademark lawyer" when they're not calling me other things. :-) Could you tell us the URL of the Web Site where you learned that?

Of course, somebody could incorporate a particular image of an animal in a trademark. And anybody who draws an animal automatically has a copyright in the drawing and can prevent others from copying the drawing.

When a photographer or artist depicts a human figure, it is customary to get the human to sign a "model release" allowing the image to be used for particular purposes, or for any purpose, whatever the release says. This acts as a waiver of the human's "right of privacy." Famous people also have an enforceable "right of publicity" as Dustin Hoffman demonstrated when a Los Angeles magazine made up a composite photo that showed him in a dress (not from his movie Tootsie). But animals, well, that's a new one on me.

Now if someone's image of a particular racehorse looks suspiciously like it's been derived from another image of that horse, well, that could be copyright infringement. But the way to avoid that is to document that the racehorse was drawn independently of that other image ... say, with a series of life studies that shows that the artist had access to many images of the horse, or actually viewed the horse, live.

If this is a serious issue for you, it would be desirable for you to consult a lawyer for advice. It is dangerous to rely on anything you may read posted on a public forum such as this one, intended for general education rather than specific legal advice.