By Atreya Mathur
When I see red and black, I think Netflix. You might think Harvard because of their crimson and black logo. I describe the color of my shirt as Tiffany Blue . But it is not the robin egg blue, or the Columbia University blue or the blue of Harrods in London. And I can spot a pair of Louboutin’s from a mile away. Studies have shown that colors can have a powerful impact on thought and association, so it’s no wonder that there are several complexities in intellectual property protection and ownership of a color.
Debates about Anish Kapoor’s blackest black and Purdue’s whitest white have been heard from London to Indiana. Less controversial is the latest installation in NY, Color Factory, is a collaboratively produced art experience inspired by the “joy of color” in New York City. It is a multisensory exhibit with 16 participatory installations that are inspired by (some of) the colors of New York. In this “immersive experience,” viewers begin in one room and are transported into the next, like a maze through tunnels, contraptions in the wall and colorful doors. The installations include a walkable, interactive flowchart quiz that leads you to your “secret color” which is representative of your personality. The results of the quiz lead to different shades of blue, green and red, among others, that are amusingly labeled. A few of my personal favorites were the Eyes of Jake Gyllenhaal for an ocean blue and #Vibes for a hot pink, encouraging you to become a dance floor influencer (a fun segue into the next installation: a luminous dance floor.) Another installation includes an activity on color and human connection through a rotary phone, a sketch pad and color pencils. Finally, there is Color Factory’s signature blue ball pit, which is enormous and very blue (maybe even a little Tiffany blue.) Each installation and every color have the power to make viewers feel a different emotion.
It is therefore clear that when it comes to art, color plays a significant role. A canvas painted black could symbolize something meaningful and powerful. As could a painting that is different shades of white. Contemporary art and modern immersive experiences, such as Color Factory, additionally allow the public to experience art and color in new ways. One of the reviews Color Factory received was how it was “such an original idea.” It’s interesting to think about the “originality” of an exhibit based on color and how these colorful installations are protected under law. This article analyzes intellectual property protection of colors and the implications of copyright and trademark of a color in immersive exhibits.
Copyrightability of Color
If a company uses the same color to market their brand for several years, such as Tiffany or Harrods, can and does it restrict another company from using that color? If Rothko’s White Center uses yellow and pink, can this arrangement of colors be incorporated by another artist? If yes, how can the work be protected from infringement? If not, are there infinite colors and shades that can be used, or will we at some point “run out” of colors to use?
Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. Usage of colors themselves cannot be protected by copyright. A color is not distinctive enough to be copyrightable, and it should not be copyrightable, as it aims to monopolize its use and impose restrictions on other creators. However, an arrangement of colors may be afforded such protection when the creator of the work employs skill, judgment, and effort in its creation. One can copyright the arrangement of specific colors in a particular configuration, that is, the exact or near-exact positioning and arrangement of the colors. Copyrighting a color pattern would therein essentially be the same as copyrighting a finished work.
For example, consider a painting that uses only one color in its expression. Think Malevich’s The Black Square (1915). The painting, if created more recently, itself is protected under copyright for being an original work of art under the Copyright Act but the singular color used would not independently fall under copyright protection. The artist in such a case would likely receive “narrow” copyright protection for the work. This means that a straight up reproduction of the same work in different color is still copying and thus infringing. Other artists would be free to use the color for their own artwork but not the pattern of the original copyrighted work. It is likely that there would be no infringement in such cases and each artist would receive narrow protection over their work created with the singular color. For artwork that has a combination of two or more colors, it could be likely that “broader” protection may be granted to the artist due to an existing scheme of specific colors and effort put in by the artist. This would mean that subsequent artists would not be able to create using that certain scheme of colors but could use those colors in a different arrangement which would not violate the original artists’ copyright. Upon analysis, this form of intellectual property protection of a color does not differ greatly from copyright protection of the entire work but it does have a greater effect on ensuring that the purpose of copyright law is met.
The purpose of copyright is to promote science and useful arts and allow creativity and innovation. If one had copyright over a color, they would have monopoly over the color. This would have a chilling effect on artists who aspire to create new works or experiment with colors in their artwork. The principles of copyright law such as the public domain and scenes a faire doctrine may also evidence why color as a concept was not expressly included in the subject matter of copyright law. These doctrines provide that certain creative elements are excluded from copyright protection due to the fact that they either belong to the public or they are elements that are necessary for a common setting due to similarity of expression. It may be argued that colors are also such creative elements that provide a means to expression, and if copyrighted, it would likely reduce the purpose of the law to futility. It is, therefore, most appropriate to copyright the entire work rather than a singular color.
While colors are not often granted protection under copyright law, under trademark law, colors may have a better chance of gaining protection as it is easier to satisfy the criteria and requirements of a color mark, and the purpose of trademark law. However, this tends to play better with companies and well known-marks, rather than artists trademarking a color based on their artwork.
Color as a Trademark
Trademarks are defined as “any word, name, symbol, or device, or any combination thereof” that is used to “identify and distinguish” one’s goods or services from those of other sources. Colors can be registered as trademarks. Colors were traditionally barred from obtaining trademark protection and are not explicitly included within the statutory definition of trademarks. However, in 1995, the United States Supreme Court in Qualitex held that a color can be registered as a trademark upon presentation of evidence showing that the color has become associated with a particular product and identified the source for that product. The trademark owner must show that the trademark color has acquired substantial distinctiveness, and the color indicates source of the goods to which it is applied. Before Qualitex, the Circuits had been split regarding whether color alone could be afforded protection. The Supreme Court settled the issue, unanimously holding that “there is no rule absolutely barring the use of color alone.” Therefore, singular colors and color combinations can be trademarked as part of a product package or service, if, like any other trademark, they satisfy the following conditions:
- The color mark must be capable of indicating the source of those goods, even if the source is unknown.
- The color mark can not be functional or utilitarian in purpose.
A color can also only be trademarked in connection with a particular good or service if it has achieved “secondary meaning.” The Court analogized color to the category of “descriptive marks,” which are never inherently capable of indicating source. For such categories, there is an assumption that the term—or color—was adopted for purposes other than to identify source. The Court recognized, however, that color, like descriptive marks, could come to identify, distinguish, and indicate the good’s source through “secondary meaning.” More recently, in In re Forney Industries, where a dispute arose from the attempt of Forney Industries to register a mark consisting of an orange color gradually blending into yellow, with a black banner at the top, the Federal Circuit reiterated that color marks on product packaging can be inherently distinctive and may be entitled to trademark protection.
Businesses tend to trademark colors though it isn’t an easy feat. In the case of Louboutin, the United States Court of Appeals for the Second Circuit held that Christian Louboutin had a valid and enforceable trademark for the use of red outsoles, but only when the rest of the shoe was painted in a contrasting color. The Federal District Court, noted in the earlier decision how popular the Louboutin shoe had become stating how it was often seen on Hollywood red carpets and runways, and was essentially instantly recognizable “to those in the know.” But, on appeal, the court stated that the law did not allow “recognition of a trademark for the use of a single color for fashion items.” In reversing that finding, while the appeals court allowed Yves Saint Laurent to sell its monochrome red shoes, the appellate court also stated that color can and does serve as a trademark in the fashion industry, and that Christian Louboutin’s world famous Red Sole trademark is valid, protectable and enforceable.
While it isn’t as common for an artist to trademark a color, there are some trademarked colors that are owned by artists, which cannot be legally used without prior permission from the artist, such as International Klein Blue, a distinctive ultramarine blue which was registered by painter Yves Klein as a trademark. Jewelry brand Tiffany & Co.’s signature blue, as mentioned earlier, is also protected and a registered trademark. More recently, in 2016 sculptor Anish Kapoor purchased the artistic rights to “Vantablack”, a material described as the “the darkest man-made substance.” The substance is made of carbon nanotubes that reflect virtually no light. However, the exclusive license of Kapoor’s Vantablack proved controversial, sparking a feud with Stuart Semple, a British artist who then set out to liberate colors from private ownership. Semple created several of his own “coloriest colors,” including the “pinkest pink” and then made them available to everyone in the world, apart from Kapoor. On purchasing the product, the following message would appear: “By adding this product to your cart you confirm that you are not Anish Kapoor, you are in no way affiliated to Anish Kapoor, you are not purchasing this item on behalf of Anish Kapoor or an associate of Anish Kapoor. To the best of your knowledge, information and belief this paint will not make its way into the hands of Anish Kapoor.”
“This super-glitter by Stuart Semple is available to everyone except Anish Kapoor! (who won’t share his black!).” – CultureHustle
Semple intended for the product to raise a dialogue in a debate about ownership and elitism and privilege and access to the arts. While this has not been decided in a court of law since protection had been granted, it does make for interesting consideration on intellectual property ownership of color given the ongoing debate.
Other colors that are very commonly used by artists could be called “signature colors” where specific artists used them in so many of their works that the shades are associated with them. It is usually challenging to register a color as a trademark. This is due to the public interest notion associated with intellectual property. More trademarks, or copyrights issued for colors, would lead to monopolization of available colors. Despite different shades or hues that may be available, arguably there are a limited number of colors. If trademarks and copyrights were given to all colors, there may very well be no colors left for companies to use. Therefore, there is public interest in preventing monopolization to ensure availability of colors for businesses and for artists. If the owner can show that because of the long-standing and widespread use of the color on its products and services, customers’ perception of that color has changed, then it may be possible to trademark such color. However, it would be even more challenging for an artist to gather evidence to prove the existence of a link between their work and a viewer’s perception.
Considering immersive modern art, each installation is copyright protected as artwork, but the colors itself cannot likely be protected either by copyright or by trademark law. Just as having light projected onto a building cannot be deemed graffiti but could be light pollution, usage of different lights and colors in immersive installations cannot be monopolized., This does not mean that the art or the exhibit is void of intellectual property protection. Copyright exists at the time of creation and each artist has a copyright over their work. An exhibition consisting of different installations relating to color is a creative and artistic endeavor that requires selection, compilation, and arrangement. It is likely that the art is protected under copyright and reproduction of the work would constitute infringement, but the idea of using colors for the exhibit would not be protected. The Happy-Go-Lucky Exhibit in New York City is a similar multisensory exhibit where “you can immerse yourself in a cacophony of glittering lights and dazzling scenes.” The artistic vision of the exhibit is different where it focuses on “you” becoming the art, but it also uses colors and sensory installations in the process. The colors are used as a means of expression, but it is expressed differently. Which is the essence of intellectual property and copyright law- to protect expression, and allow others to create and build on existing work. Both these exhibits and the art installations within are likely to be individually, though narrow copyright protection would probably be afforded, to allow other creators to express color through such contemporary exhibits as well. Trademark registration, however, for any of the installations would mostly be impossible given the nature of the protected work.
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About the Author
Atreya Mathur is the inaugural Judith Bresler Fellow at the Center for Art Law. She is a Master of Laws Graduate from New York University School of Law where she specialized in Competition, Innovation, and Information Laws, with a focus on copyright and art law. Atreya also co-founded m e r a k i consultancy, a consultancy service focused on academia and higher education in law, and additionally serves as a consultant at InvestIN Education for the New York Law Program. She graduated with her Bachelor of Business Administration and Law (BBA LL. B Hons.) from School of Law Christ University, India and hopes to create a niche for herself in legal academia. Atreya has a particular fondness for the art world, especially the controversial take of contemporary, appropriated, and derivative works, fascinated by the intellectual property and copyright implications of modern immersive art.