Art of Darkness

Can you own a color? Should you be able to?

I regret to inform you that Anish Kapoor has indeed won the idgaf war

People feel if something exists, they have an automatic right to it… The reality is the world has never been like that.

Ben Jensen, founder and CTO of Surrey Nanosystems

Can you own a color? Yeah, you can. But should you be able to? Is there a rationale for it?

His dark material

In 2014, renowned artist Anish Kapoor (of “the Chicago Bean” fame) bought the exclusive rights to Vantablack, the world’s blackest black, created for military and tech uses by a company known as Surrey NanoSystems (SNS from here on)¹. Besides sounding like a really racially insensitive rap joke, vantablack was a pigment that produced (at the time) the darkest shade of the color black possible, which trapped a then unprecedented 99.965% of light.

This did not sit well with many people, most notably fellow artist Stuart Semple who, though less acclaimed than Kapoor, decided to deny him the privilege of painting with a unique pigment. Thus, Semple created The World’s Pinkest Pink, a trademarked pink color that was allowed for free use to anyone - except Anish Kapoor specifically, to the point that, before buying this Vantapink of sorts, you had to sign a waiver promising you’re not Anish Kapoor, affiliated with him, or planning to share the pink paint with Kapoor in any capacity. This was not, uh, airtight:

Anyways, beyond Kapoor winning the idgaf war, what happened was that there was a massive outrage about him being the sole possible user of Vantablack, which was promptly forgotten because such is the nature of social media, but also because darker blacks were found.

The concept of a pigment that could only be used by one person was very controversial, much to the chagrin of SNS - they struck numerous deals with various private companies for the exclusive rights to Vantablack. This isn’t unusual in the world of art, however: artist Yves Klein owned his own (gorgeous) shade of blue, while fashion designer Elsa Schiaparelli made her use of shocking pink a trademark for her fashion house.

As a whole, trademark colors have a long history: Owens-Corning trademarked its pink fiberglass insulation after a five year court battle in 1985, followed by Qualitex green-gold dry cleaning pads in 1995, which then opened the floodgates: Tiffany blue, UPS “Pullman brown”, Barbie pink, T-Mobile’s magenta, etc. Christian Loubutin has exclusive rights to red soles on shoes, Fiskars owns orange scissor handles, and whatever the hell The Wiffle Ball, Inc. is has a trademark on yellow for use in bats. Two universities, the University of Texas at Austin and the University of North Carolina, have trademarks on specific shades of red and blue respectively. There’s a few silly ones too: Cadbury lost its lawsuit to trademark the color purple on candy, while John Deere lost and then won protections over its use of green and yellow on farm equipment; Prince’s estate has a pending lawsuit to exclusively own the use of the color purple in any live music events.

Generally speaking, the US legal doctrine on copyrighting colors is as follows: the color has to distinguish the firm from its competors in clear ways (“secondary meaning”), can’t be functional to the product (you couldn’t trademark, say, brown chocolate), and can’t put competitors at a disadvantage by increasing cost or decreasing quality. The argument in favor of trademarking colors is that color helps build the identity of a brand and distinguish it from its competitors, such as Coca Cola vs Pepsi: beyond everything else, one is red and the other one is blue. The arguments against, besides “it’s stupid”, are twofold: the first is that only so many colors exist (there’s 1,867 shades of Pantone tones), and the second is that it’s not really possible for anyone except litigious pricks to tell Mattel’s copyrighted Barbie pink from some other shade of pink that is 0.000000000001 deviations on the RYB color wheel away. There have, of course, been some pretty ludicrous lawsuits (beyond Prince’s): T-Mobile sued a random lemonade company over a completely different shade of magenta.

Unfair use

What’s the difference between copyright, a patent, and a trademark? What’s Fair Use? Well, copyright refers to the rights of an author over their intellectual work - be it art, a recipe, etc. A patent, meanwhile, is for technical inventions: machines, processes, etc. And lastly, a trademark is something a brand or company uses to distinguish itself, such as a logo, a proprietary font, etc. For instance, Vantablack the color was copyrighted, not trademarked, because the claim SNS made was over the process to produce it. And SNS also held a patent on that process, because it was an original invention of theirs.

The whole sum of patents, copyright, and trademark are what are commonly known as intellectual property rights. The idea behind trademarks, copyrights, and patents as a whole is fairly simple: they were designed to solve is the underprovision of ideas. Basically, people won’t put resources into research, creative endeavors, or branding exercises if they pay all the costs and then their work can be immediately stolen. So the way intellectual property rights work is by providing the person or company that invents an idea with a monopoly on it for a certain period of time.

Generally speaking, inventing or creating something has three core characteristics: it’s not certain whether the process will be successful, the invention as an idea is indivisible, and the invention as an idea is a public good, since people can’t be excluded or prevented from using it if they haven’t paid for it, and one person using the idea doesn’t prevent any others from using it at the same time. The problem with public goods, divisible or otherwise, is that there’s never a market for them, because people can just use them without paying and without any concern for the level of use. Something like “national defense”, which is a pure public good, is very seldom actually private, since it’s borderline impossible to charge people for it (at least without your private plane mysteriously crashing).

A core difficult here is how to strike a balance between protecting creative endeavors, so that they not be discouraged by free loaders, but not stiffle further creative or derivative work - so most patents or copyright or trademarks expire, and exceptions like Fair Use exist. Fair Use, in some detail, is doctrine whereby copyright protections (and trademarks to some extent) don’t fully apply to creative works under certain circumstances (critique, parody, remixes, etc.) as long as the work is not overly derivative- JK Rowling couldn’t be sued by the Tolkien estate because Dumbledore infringes on Gandalf’s copyright.

Back to the economics, the point of granting someone a patent (I’m gonna use it as a catch all now) is that they get monopoly profits over their work for a certain amount of time, which would incentivize producing work vs a world where everyone could just copy or steal your intellectual property. In the context of a market economy (ugh capitalism amirite), endeavors of various kinds are considered worthwhile based on profit, and so ensuring profitability of art or research comes from their perceived value - research generates positive externalities, and the arts are generally appreciated by people. Because ideas have that public good quality to them, they’re subject to what’s called the tragedy of the commons: if everyone is just allowed to use ideas for free, then (in theory) they don’t have any incentives to make them or take good care of them, which results in underprovision and underutilization.

A copy of a copy of a copy of a copy

The arguments in favor of intellectual property rights seem fairly straightforward: if it’s not possible to profit from ideas, it’s possible that not enough ideas would be supplied, which is bad. What are the arguments against?

The first, and most obvious one, is that copying isn’t the same as stealing. If I steal a book from a bookstore, then someone else won’t be able to read it. But if I memorize it and write it down and sell the manuscript, Fahrenheit 451 style, then more people are able to read the book, not fewer. Because ideas are a public good of sorts, you can’t exclude freeloaders, but you also can’t exhaust them with use. There are, obviously, limits to this: if two people see the same painting at a museum, there’s no loss, but if 30,000 see it, they won’t see shit. So there is definitely a possibility of congestion in the dissemination of non-excludable ideas: some things, especially creative products, might be devalued if they’re used too much.

Trademarks, for instance, are generally in this realm: if you were able to claim that any soda was Coca Cola, you’d make the brand worthless, which Coca Cola would think is bad - and brands are pretty valuable! Not to mention, they might even be useful to consumers. The argument for trademarked colors is that letting just anyone use University of North Carolina blue would congest the market and confuse consumers, which is like kinda true in some very very narrow circumstances: Louboutin, for instance, is a very valuable brand and has red soles as a signature, so perhaps letting them trademark that specific shade of red could help them preserve that value. But trademarked colors are pretty stupid overall.

Obviously, the second problem with intellectual property is that giving someone a monopoly on something raises the price of that something. The point here is that using ideas is next to free, which is bad for idea creators. But giving them a monopoly is bad for idea users, who then have to pay more for something that should be next to free. For example, patents on medical technologies impose enormous costs on the sick, which particularly affects people in and out of poor nations: back in 2021, that the COVID vaccines were privately owned was a huge issue, since it raised costs for developing countries to protect their populations. Because the companies that are granted patents get monopolies, they have market power over the products they create, resulting in perhaps an insufficiently competitive marketplace overall.

A third issue, related to that last part, is that a lot of creative and innovative endeavors rely heavily on previous work in a lot of ways, which means that exactly where the boundaries of intellectual property rights are is very important to determining its economic costs. For example, Bottoms, a recent movie about two horny teen girls starting a lesbian fight club, can’t be said to infringe on Fight Club’s intellectual property because neither Chuck Palanhiuk nor David Fincher own the idea of a fight club - and, even then, because it’s not just literally Fight Club but gay and in high school. Additionaly, you can’t really copyright certain aspects of fiction, such as the concept of “a fight club” anyways: common tropes or recurring elements of a genre (called scenes a faire) are not subject to copyright law precisely because they would inhibit creativity in really ludicrous ways.²

Another, fundamental issue is that the patent isn’t given to the person with the most valuable version of the creation, but rather, to the first one to come up with it, resulting in some pretty bizarre incentives: overinvestment in really suboptimal ways to come up with inventions, followed by overzealous enforcement. For example, at roughly the same time as Louis Daguerre invented the daguerrotype (an early version of a photograph), an Englishman named Talbot developed a similar process but which had different property rights attached, meaning it was less widely adopted - so we can’t actually know if Talbot’s process was more advanced, or more efficient.³

A final issue with patents is the empirical research: they do not seem to have as positive effects as promised. There is not a lot of evidence that stronger patents encourage innovation, because companies are allowed to push their claims on competitor’s rival inventions much further, and because in many cases patents don’t really result in disclosure of important creations. Similarly, there is some evidence that large companies use their dominance in the patent market to prevent entry and competition by other companies, resulting in lower competition and therefore lower economic dynamism. “Patent troll” behavior, where companies acquire lots of patents and sue competitors over supposed infringement, is a major concern.

Conclusion

So, should you be able to own a color? No lmao. You, however, might prove that you need to have exclusivity over certain instances of use of a color in very narrowly demarcated contexts in order to preserve the value of a brand that is very associated with that color but does not exclusively depend on it.

How about patents? Well, it would be a good idea to let the government buy them out, which would encourage innovation while still preventing many of the more noxious uses. This would be especially good for medical technologies, particularly vaccines, that treat diseases which are endemic to developing countries. COVID would have been much less of a problem outside the developed world in 2021.

Lastly, copyright. Honestly I think that congestion could apply to some popular characters, which is why it would be a good idea to have property rights over creative works be limited but infinitely renewable, at some high cost: most creations would fall into the public domain after their copyright expires, but some very valuable ones would be maintained with an incentive to use them. The Disney Corporation, which is the poster child for copyright abuse, is actually a good example: they still use some of their oldest properties, like Mickey Mouse, and have incentives to maintain the quality of the content they feature in. But they shouldn’t just get that for free. If they have a valuable brand built on a government monopoly over certain creations, the least we can do is ask they pay for the legal rights they’re profiting from.

1. If you were really wondering, a big use for a hyper-black pigment is astronomy, because optical instruments need to filter out as much nasty surplus light as possible.

2. Bringing up scenes a faire because there was a lawsuit between two werewolf porn authors like five years ago where one claimed to own a bunch of tropes in one specific genre of werewolf porn called Omegaverse. That author, Addison Cain, could also be sued by Christopher Nolan because her werewolf porn saga started off as a fanfic about Bain and Batman from The Dark Knight Rises (in which they were both horny werewolves).

3. This isn’t a great example, however, since the daguerrotype was owned by the French government, which did not enforce its patent in order to promote the technology, while Talbot owned his invention privately and charged for its use.