Paint it Vantablack -- Artists owning colours and the dark side of IP

Vanta-aluminium foil

"Vantablack" is "the blackest black ever existed". It absorbs up to 99.965% of radiation in the visible spectrum. Its amazing, absolute blackness is the result of British company Surrey NanoSystems's technology, which created Vantablack's black thanks to a number of carbon nanotubes that make almost all human-eye visibile and invisible light disappear ["Vanta" stands for "Vertically Aligned NanoTube Arrays"]. If you paint a wrinkled aluminium foil with Vantablack, wrinkles disappear. Even the foil disappear. What remains is a plain, absolute Vantadarkness. Think of a black hole, but in a liquid form that can be used in a wide range of applications -- from invisible jets to solar-energy panels.

Also, it can be used in art. As some newspapers reported, Surrey NanoSystems has just provided British-Indian artist Sir Anish Kapoor (that of ArcelorMittal Orbit) with exclusive rights to paint using "Vantablack". While Surrey and Sir Kapoor have not disclosed the details of the agreement, the British company confirmed that - from now on - Mr Kapoor alone can paint using Vantablack.

Now, there are two ways to address this issue. The first one is to start a serious reflection on the death of artistic freedom and the intrinsically-mean nature of IP rights. The second is to be on the Dark Side. As many people have already gone for the former, we will go for the latter.

The story of Sir Kapoor acquiring exclusive rights on Vantablack is indeed amazing for many reasons.

"But what about the 
artistic freedom?!1?" [yawns]

First of all, how did Surrey Nanosystem manage to transfer (and how did Sir Kapoor acquire) the "esclusive right to paint" using Vantablack? Given its highly-technological nature, Vantablack is likely protected by a number of patents. In light of its possible military applications,  some of them might not even be publicly-available. Espacecenet does not seem to provide final answers in this regard, with Surrey Nanosystems owning no patent specifically protecting industrial (or artistic) applications of a colour. Some of the British company's patents covers methods for creating nanostructures, though. Has Sir Kapoor acquired the right to manufacture Vantablack -- instead of painting using it?

Even darker would be this story if the IP right that Sir Kapoor acquired was a trade secret. It would be Draconian security measures. More challenging would be how the trade-secret regime could apply in the art field. For instance, the "reasonable steps" for an artist to keep the way in which its colour is manufactured secret could be significantly different from those that a company, a military body, or a bank could be expected to take to protect the secrecy of their commercial information.

Sir Anish Kapoor, 
"Self-portrait" 
(Vantablack on canvas)

The use of Vantablack in Sir Kapoor's future works opens even more IP scenarios. Being the only one who could lawfully use it, the relevant public could identify Vantaclack-painted sculptures, paintings, or buildings as originating from Sir Kapoor. Thus, Vantablack could be to Sir Kapoor what cuts on canvas are to Lucio Fontana, i.e. a unique element that the public perceives as indicator of the commercial artistic origin of works -- in short: a trade mark. Companies and non-profit associations are allowed to have their distinctive signs protected under trade mark law. Perhaps also artists could.

Sir Kapoor is not the first artist wishing to acquire rights over colours [Yives Klein and International Klein Blue is the prior art, in this field]. This story seems to tell something more, though. As technology is becoming more and more important in artistic creation, IP rights seem to make apparent what many artists have been alleging since a while [insert abused art=making money quotation]: art is not so different from other businesses, and artists could well-be like other business men -- creating their products, protecting them via soft- and hard-IP rights, and acquiring immaterial assets to distinguish their works from the others on the market. Considering the wonders that the marriage between technology and creativity could bring, this Kat is not entirely sure that the Vantablack's tale should be considered so badly. It's not a disgrace, it's avant-garde.