Is it illegal to use that color?

Claiming exclusive use of a color seems about as outlandish as claiming exclusive use of air. After all, color is something that we just experience in our lives. While it seems odd to claim that any descriptive quality (e.g. red, smooth, shiny, et cetera) could be set aside for exclusive use, color actually can be protected under our intellectual property laws.

For the most part, when we talk about color(s) as intellectual property, we discuss how colors are used as trademarks. Color is an important part of a company’s brand so that makes some sense. One example might be McDonalds – when you think of their Golden Arches, chances are good that you identify a very specific red and yellow color scheme. Similarly, if you see a little teal colored jewelry box, you probably know that it came from Tiffany & Co. Including color as part of a company’s trademark protects their brand and it benefits the consumer because it helps them recognize their favorite brands even when the company offers a new product. Color can also be protected by intellectual property laws if the technology used to create that color is patented.

Last fall an interesting story made the rounds – artist Anish Kapoor secured an exclusive license from Surrey NanoSystems to use Vantablack in his art. Vantablack represents an engineering feat in that it absorbs virtually all light shined at it (99.6%) making objects coated with it appear perfectly black even in bright light. Further, three-dimensional objects coated with Vantablack appear flat and two-dimensional (see below) creating a unique effect. The technology is interesting in and of itself – Vantablack achieves this deep black by creating a three-dimensional carbon nanotubule matte surface so when light is reflected off the surface, it bounces back on to itself rather than reflecting back to the viewer. Vantablack wasn’t designed it to be used for art – Surrey NanoSystems created it with the original goal of enhancing stealth technology.

Compare the two bronze sculptures - one with and one without Vantablack., accessed 6/17/17

Compare the two bronze sculptures – one with and one without Vantablack., accessed 6/17/17

While you might not recognize Anish Kapoor’s name, there’s a good chance that you are familiar with some of his art. Kapoor is a contemporary artist who has created a number of well-known public art sculptures including Chicago’s Cloud Gate (the mirrored kidney bean shaped sculpture at Millennium Park) and Sky Mirror (with versions located in Dallas, TX, New York, NY, London, England, Nottingham, England, and Saint Petersburg, Russia). He has achieved a level of success in his work that has brought him a measure of fame and wealth; and I expect both were important in allowing him to negotiate an exclusive license to use Vantablack in his art.

Cloud Gate, sculpture by Anish Kapoor (2006), photo by Michael Kloth (2006) Millennium Park, Chicago, IL

Cloud Gate, sculpture by Anish Kapoor (2006), photo by Michael Kloth (2006)
Millennium Park, Chicago, IL

Kapoor has said that he was immediately drawn to Vantablack because he believes it a unique way to explore the concept of void. He states it is the “blackest material in the universe after a black hole.” Upon learning about it, he contacted Surry NanoSystems to discuss a collaboration which resulted in his obtaining exclusive use of the material for art. In his first Vantablack project, he worked with luxury watch maker Manufacture Contemporaine du Temps to create the limited edition Sequential One S110 Evo Vantablack watch (only ten were made and they retail for $95,000). The speculation is that he is currently working on a new larger scale solo project but details are scarce., accessed 6/17/17, accessed 6/17/17

While the nature of Kapoor’s work is a good fit for Vantablack, it was never likely to be adopted on any significant level by other artists because it comes with too many caveats. First, while exact pricing isn’t available, the nature of the technology dictates that it is expensive putting it far out of the reach of most artists. Perhaps more importantly, it must be applied in a lab by qualified technicians trained in the safe use of the substrate. Further difficulties are that the application process itself would damage a wide variety of art supplies and materials as it needs to be heated to between 100 and 280 C (212 to 536 F) during application. Finally, once applied, Vantablack is fragile to the point that if touched, the three-dimensional structures collapse so anything coated with it must be behind a protective barrier.

Given that Vantablack has limited artistic uses, it doesn’t seem like a problem that Kapoor secured an exclusive use license but that’s not how this story plays out. Check back next week to learn how the art community, led by painter Stuart Semple, responded.

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