Exclusive Rights in Vague Terms – Vantablack in the Arts

Background

In the summer of 2014, British company Surrey NanoSystems (“SNS”) announced that it had created a new substance out of carbon nanotubes that would absorb up to 99.96% of light.[1] It is created by growing nanotubes on a surface heated to over 430 degrees Celsius, and is currently only produced by SNS. Intended for military and scientific use, Vantablack could increase stealth capacity and significantly decrease reflective interference in telescopes.

 

Exclusive License and Public Response

Anish Kapoor, a British sculptor, has been working with Vantablack since 2014. In February of 2016, he negotiated an exclusive license to use Vantablack for artistic purposes. Vantablack, including the spray-form Vantablack S-VIS, has limited artistic uses because of the conditions required to manufacture the material, but many artists had been excited to explore its potential. Those disappointed by the exclusive license responded with outrage.

Perhaps most notably, Stuart Semple spent the year developing a string of other “pure” pigments that could be created and used without such limitations and sold them with a license prohibiting purchasers from sharing them with Kapoor. This “feud” captured attention beyond the art world, and lead to a debate over the validity of limiting innovation by allowing any artist to have an exclusive right over a new color.

 

Legal Framework

Under the Berne convention, international law does not allow for copyright protection for or ownership of colors. This perception appears to drive much of the public backlash, because artists view Kapoor’s exclusive license as limiting the use of a new shade of black. However, Vantablack is a material, not a color, and the technological process that creates it is protected under the British patent system. SNS owns that process, and has the right to distribute the product of the process as it sees fit.

 

Impact on Innovation in the Arts

The debate over Vantablack does not stem from a question of legal rights, but from a sense among artists that limiting the use of artistic tools is contrary to public policy, and thus should not be valid. Kapoor has argued that his exclusive license to develop artistic uses of Vantablack is no different than the exclusive contractual relationship he creates with stainless steel workers with whom he collaborates on his other sculptural works.[2] An SNS spokesperson, Steve Northam, discussing the agreement, notes that the agreement is under constant review, the material is incredibly cost-prohibitive for most artists, and SNS has a vested interest this early in their development process in controlling Vantablack’s usage.[3] Given these factors, this impermanent exclusive license is unlikely to have the stifling effect on art that Semple and his cohorts protest against. Rather, this is a perfectly valid exercise of the rights patent law grants SNS. It may have a slight chilling effect on artistic innovation, but primarily this system rewards SNS for developing a product and protects them from any loss of control over it.

 

Boundaries of the exclusive license

Semple’s complaint against Kapoor seems to stem from a sense that Kapoor’s exclusive license unjustly denies other artists the opportunity to use Vantablack.[4] However, Kapoor’s exclusive license is limited to what Northam describes as “anything meant to be observed purely as a work of art.”[5] The specificity of Northam’s description leaves room for artists in many disciplines to work with Vantablack.

Pottery and sculpture, two of the artistic fields in which Vantablack’s technological requirements present the fewest barriers, are often mediums for work with a function independent of their artistic quality. SNS’s Vantablack FAQ page also has a separate response for fashion-focused uses and heavily implies that Kapoor’s license would not prohibit fashion houses from using Vantablack, if it becomes practically useful and safe as a fabric coating in further development.[6] This conceptual seperability between form and function runs parallel to seperability as one of the core tenants of copyright protection established in Pivot Point International v. Charlene Products, Inc.[7] It leaves a significant artistic area outside of the scope of Kapoor’s exclusive use agreement.

 

Conclusion

Semple’s criticism of Kapoor has never been grounded in legal tenets, but rather a general sense of “rightness.” His focus on the artistic principles of fairness rather than the legal principles of ownership weakens his criticisms. Public policy and legal doctrine are SNS’s side, and they have every right to control and protect the product of their intellectual property, even at the expense of an unrelated party’s artistic sensibilities.

 

[1] Surrey NanoSystems, Vantablack FAQs (last visited Feb. 10, 2017), https://www.surreynanosystems.com/vantablack/faqs.

[2] Brigid Delaney, ‘You could disappear into it’: Anish Kapoor on his exclusive rights to the ‘blackest black’, The Guardian, Sept. 25, 2016, https://www.theguardian.com/artanddesign/2016/sep/26/anish-kapoor-vantablack-art-architecture-exclusive-rights-to-the-blackest-black.

[3] Jessica Hullinger, 6 Facts About Vantablack, the Darkest Material Ever Made, MentalFloss, (Mar. 6, 2016, 6:00 AM),
http://mentalfloss.com/article/77190/6-facts-about-vantablack-darkest-material-ever-made.

[4] Stuart Semple, Anish Kapoor is banned from the world’s pinkest pink paint, (Nov. 9, 2016), http://stuartsemple.com/anish-kapoor-banned-worlds-pinkest-pink-paint/.

[5] See Hullinger, supra note 3.

[6] Surrey NanoSystems, Vantablack FAQs, (last visited Feb. 10, 2017), https://www.surreynanosystems.com/vantablack/faqs.

[7] Pivot Point Int’l v. Charlene Prods., Inc., 372 F.3d 913 (7th Cir. 2004).

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