by Amineddoleh & Associates LLC | Jan 5, 2017 |
A few weeks ago, artist Anish Kapoor posted a photo to Instagram of his middle finger swathed in the “World’s Pinkest Pink” paint pigment with the caption “Up yours #pink”. The photo was a pointed reply to artist Stuart Semple, who had expressly banned Kapoor from acquiring the pink pigment and requiring online purchasers of the color to sign a legal declaration that they were not affiliated with Kapoor in any way.
International Klein Blue
Semple’s efforts to ban Kapoor from accessing his pigments reflect his continued displeasure with Kapoor’s own monopoly of a color: Kapoor is the only artist allowed to use “Vantablack,” a material developed by British company Surrey NanoSystems and purportedly the darkest material in existence. Surrey NanoSystems’s decision to grant exclusive rights to the artistic use of Vantablack to Kapoor was openly condemned by many other artists like Stuart Semple, who wished to use the Vantablack in their own works or believe that colors should be freely accessible to all artists.
The exchanges between Semple and Kapoor reignited a longstanding debate of whether someone can exclusively “own” a color. In most countries a color can be “owned” as a trademark, just like any other logo, design or word. In the US, a color may qualify as a trademark if that color does not serve a functional purpose (such as the colors orange and yellow for safety equipment) and if the color has acquired a “secondary meaning” that identifies that color with a particular brand or source rather than the product itself.
But trademark protection of colors is often limited to very specific commercial purposes and uses. We are all familiar with Tiffany & Co.’s distinctive “Tiffany Blue,” but its trademark rights only apply to boxes, handbags, and catalogue covers. “U.P.S. Brown” applies only to its delivery services, and 3M’s canary yellow color is trademarked only for its popular Post-its.
One of the most famous cases involving the limitations of trademark ownership of a specific color was the dispute between shoe designer Christian Louboutin and Yves Saint Laurent after YSL launched a line of shoes that included a red shoe with a red sole. In 2012, the New York Court of Appeals concluded that Christian Louboutin’s trademarked glossy red-lacquered “outsoles” were only protectable where the red outer sole contrasts with rest of the shoe, and YSL’s shoes, which were entirely red, did not violate Louboutin’s trademark.
So then, how would someone be able to prohibit everyone except one person from using a color like Vantablack? The answer is likely in patent law, which permits a patent owner to exclude anyone from making, using, or selling the patented invention. Unlike trademark law, a patent does not necessarily protect ownership of the color itself. Rather, a patent grants to the owner exclusive ownership rights for the underlying invention, process, or composition that creates the color. It therefore follows that Surrey Nanosystems, as owner of the patents for Vantablack material—not the color itself— would have the right to exclude all artists except Anish Kapoor from using it.
There is a similar common misconception that French artist Yves Klein patented his famed matte blue color known as “International Klein Blue” or “IKB”. In fact, Klein secured a French patent in 1960s for the unique process he developed with art supplier Edouard Adam in Paris to achieve IKB. Although many—from major fashion designers to the Blue Man Group— have attempted replicated IKB, the only places where one can access the “authentic” IKB are Yves Klein’s artworks and the original art supplier in Paris, where the patented process to attain IKB is still used.
Perhaps like the Blue Man Group’s replication of Yves Klein blue, we can look for Semple to create his own “World’s Most Blackest Black” pigment in the future. But in the meantime Stuart Semple has released —and already sold out of—a new pigment called “the World’s Most Glittery Glitter,” which “anyone apart from Anish Kapoor can have,” continuing his mission to #sharetheblack.
by Amineddoleh & Associates LLC | Dec 7, 2015 |
Partner Leila A. Amineddoleh will be discussing art law and its intersections with intellectual property law at the International Intellectual Property Society’s New York meeting. The event will explore issues related to art theft, artists’ rights, authentication, and even touch upon antiquities looting. After the presentation, the group will be hosting a holiday party at Smith, Gambrell & Russell, LLP. Find additional information below.
ART LAW
The IIPS is pleased to announce that our December 8th meeting will feature a presentation on Art Law by Leila Amineddoleh.
There will be a Holiday Party with hors d’oevres and open bar after the presentation
Join us for a great presentation at a festive meeting.
WHEN: Tuesday, December 8, 2015, from 6:00 to 8:00 pm
WHERE: Smith, Gambrell & Russell, LLP,
1301 Avenue of the Americas, 21st Floor
(6th Ave. between 52nd and 53rd)
(subway stops: F and M at 47th-50th (Rockefeller Center), and M at 53rd between 5th and 6th)
RSVP: Please RSVP to iipsny@yahoo.com no later than Monday, December 7, 2015
CLE: Two (2.0) hours – New York and New Jersey
FEE: The meeting fee is $30 for non-members or you may become a member bycompleting the membership form and submitting the September 2015 – June 2016 annual fee of $100 ($25 for law students). Fees may be paid by cash, check or credit card at the meeting or pay by credit card here.
About our December presenter
Leila A. Amineddoleh
Ms. Amineddoleh specializes in art, cultural heritage, and intellectual property law. Ms. Amineddoleh began her career as an associate at Fitzpatrick, Cella, Harper & Scinto, where she specialized in high-stakes intellectual property litigation, and then worked Of Counsel at Lombard & Geliebter where she founded the firm’s art law group. Ms. Amineddoleh is involved in all aspects of due diligence and litigation, and has extensive experience in arts transactional work. She has represented major art collectors and dealers in disputes related to multi-million dollar contractual matters, art authentication disputes, international cultural heritage law violations, the recovery of stolen art, and complex fraud schemes. She also works with artists and entrepreneurs to protect their intellectual property and artistic rights.
Ms. Amineddoleh teaches International Art & Cultural Heritage Law at Fordham University School of Law and St. John’s University School of Law. Ms. Amineddoleh also served as the Executive Director of the Lawyers’ Committee for Cultural Heritage Preservation from 2013-2015. She is also a musician and regularly performs the piano in and around New York City.
Ms. Amineddoleh received her Juris Doctor degree from Boston College Law School. In law school, she was an Editor of the Intellectual Property and Technology Forum online journal. Prior to law school, Ms. Amineddoleh received her undergraduate degree in economics from New York University. Leila is admitted to the bar in New York and New Jersey.
Ms. Amineddoleh is a member of Art Law Committee of the Bar of the City of New York, and served as Legal Chair of SAFE (Saving Antiquities for Everyone), 2009-2010.
Leila is a frequent lecturer and author. Ms. Amineddoleh recently lectured on “Art Crime: Thefts, Forgeries, Vandalism, and More,” Brooklyn Brainery (November 2015), and as an Art crime consultant for Museum Hack, providing a training session to the museum group (Summer 2015). Some of Leila’s more recent publications include “Purchasing Art in a Market Full of Forgeries: Risks and Legal Remedies for Buyers,” International Journal of Cultural Property, Vol. 22, Issue 2-3 (Fall 2015);” Can the Market Help Preserve Antiquities?,” Wall Street Journal (August 27, 2015); “The British Museum Should Return the Parthenon Marbles to Greece,” Forbes (December 2014); and “Family Law: Artworks in Dispute,” Boston Bar Association Newsletter (Fall 2014).
We hope you will be able to join us and, as always, welcome your questions, comments, and any suggestions you may have for topics or speakers of interest for future IIPS programs.
Kind regards,
John S. Sensny
IIPS Secretary
