Can you see the Light? Vantaback and IP Rights in Colours

It has been widely reported that the Bombay-born British artist Anish Kapoor has acquired exclusive rights to use the unique Vantablack pigment, which is the blackest shade of black in existence. Vantablack, as the hue in known, derives its name from the term 'Vertically Aligned NanoTube Arrays' and the fact it is (very) black!

Created in 2014 by scientists at Surrey NanoSystems for the purpose of disguising satellites, it is the blackest substance known to man, absorbing a maximum of 99.965% of radiation in the visible spectrum. With its light absorbing properties, it has also been used to hide fighter jets from the enemy.

NanoSystems confirmed that Mr Kapoor holds exclusive rights to paint using Vantablack, however, this has outraged other artists including Christian Furr who commented, "I've never heard of an artist monopolising a material. Using pure black in an artwork grounds it…All the best artists have had a thing for pure black – Turner, Manet, Goya. This black is like dynamite in the art world." "We [artists] should be able to use it – it isn't right that it belongs to one man."

Debate has ensued surrounding Vantablack and whether an individual has the ability to own a particular shade of black or any colour for that matter.

From a legal perspective, it seems that the colour itself is the creation of NanoSystems and thus, the intellectual property of that company. As a result, the company has the right to limit and exploit its use. The company has a number of patents in connection with the process of 'growing' Vantablack, as it is made from a substance made from carbon nanotubes.  However, Kapoor claims that he holds copyright which has never been claimed or tested before in respect of the ownership or right to use a colour.

The apparent monopolisation of a colour by Kapoor has been met with strong opposition. Many companies have tried to protect the colour of their image and brand (for example, Cadbury and purple), however, intellectual property in a colour per se cannot protected.

The ownership of colours by individuals, specifically in the context of artistic works, is rare, although the concept is not unheard of.  Famous artist, Yves Klein, created a paint named IKB (International Klein Blue).  He invented the paint with the help of a chemical retailer by suspending pure, dry pigment in crystal-clear synthetic resin and compatible solvents (ether and petroleum). Unlike traditional binders, the new colourless carrier did not dull the individual particles of pigment, but left them with their original brightness and intensity.

Similar to Vantablack and the growing process patented by NanoSystems, it was this process for producing the paint which he was granted a patent for in France in 1960 rather than the colour itself. It was never claimed that the colour was protected by copyright which Mr Kapoor claims he owns and protection of a colour by way of copyright has not yet been claimed nor tested.

Divya Mirlay of Christ College, Bangalore, made a contribution to this subject on The 1709 Blog.  She summaries that Vantablack has diverse industrial applications and that the material does satisfy the requirements needed to be patented. It is novel, non-obvious and can be utilised. She comments that if Vantablack is to be monopolised in any manner, being able to patent it (the colour and not simply the process of growing it) would be a far better option than protecting it under copyright.