Amy M. Lavine – No, Vantablack isn’t copyrighted

Amy M Lavine
A selection of black oil paints. Photo credit Amy M Lavine 2016.

Vantablack, a material invented by Surrey Nanosystems in 2014, is the blackest black ever created. Although originally developed for use on satellites, Surrey recently awarded an exclusive right to all fine art applications of Vantablack to artist Anish Kapoor, and this exclusivity deal has been roundly criticized in dozens of articles and editorials. The legal language used in many of these articles is inaccurate, however: Vantablack isn’t copyrighted, because you can’t copyright a color.

A copyright can be obtained for any artwork that contains the original expression of an idea, and while the bar for originality is quite low, there are several important limits. Significantly, copyrights only protect the expression of an idea, but not the idea itself. Additionally, some type of artistic expression is required for a work to be copyrightable, and useful articles do not qualify.

Vantablack isn’t copyrightable both because it’s an idea rather than the expression of an idea, and because it’s a useful article rather than an artistic expression. This doesn’t mean that Vantablack is devoid of intellectual property protections, however. To the contrary, as an invention the color is certainly eligible for patent protection, and this is indeed the source of the exclusivity rights Surrey granted to Kapoor. The name “Vantablack” can also be trademarked, and any expressive artworks Kapoor creates using the color will be copyrightable.

This article was written by Amy M Lavine, an artist and attorney based in Hudson, NY. If you have questions about Vantablack or the copyright issues discussed in this article, contact Amy M Lavine at sketchhudson@gmail.com.

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