Amelia Chen
In 2016, when Anish Kapoor (the artist behind Chicago’s Cloud Gate, aka “The Bean”) bought the exclusive rights to use Vantablack—the world’s blackest black—in art pieces, Stuart Semple took it personally.[1] Vantablack was created in 2014 for military purposes such as the painting of stealth jets, and is a material so dark that it absorbs 99.96% of light.[2] Kapoor’s contract with the U.K. firm that invented it, Surrey NanoSystems, granted him exclusive rights to use Vantablack in painting and sculpture.[3] Although this kind of monopolization of an artistic material isn’t unprecedented, it is almost always grounds for outrage.[4]
In response, Semple created a new pigment called the “Pinkest Pink,” which he sold on his website with the following legal rider:
“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.”[5]
Of course, Kapoor got his hands on the Pinkest Pink, and posted an Instagram photo of his middle finger coated in the pigment.[6] Semple then undertook his next project: “Black 2.0,” which was also made available to the public on his website to all but Kapoor.[7] Semple has kept the series going, releasing the third iteration of his black paint and a new product called “Diamond Dust,” which is made from tiny flakes of glass and thus is not safe for anybody to stick their middle finger in.[8] Black 4.0 has been released as of 2023.[9]
What’s most interesting for us in the legal field, however, is everything that has been asserted and then breached. Kapoor’s exclusive rights have never been violated; he is, indeed, the only artist who can use Vantablack. Vantablack is no longer the world’s blackest black (that title was stripped by an MIT-developed material that absorbs 99.995% of light),[10] and Semple’s functionally similar black pigments are available to everyone (except for Kapoor). Apparently, Kapoor’s studio told BuzzFeed in 2016 that Kapoor was suing Semple but did not inform Semple himself.[11] Semple wrote to Kapoor’s legal representation to try to settle the suit, but that went nowhere.[12]
Lisson Gallery, Kapoor’s London representative, likely did violate the legal rider that Semple included on his website when it bought the Pinkest Pink that ended up in Kapoor’s hands.[13] As this case occurred in the UK and not the US, we cannot apply US case law to the situation, but it highlights the importance for consumers to actually read the terms of service on the sites that they frequent. It seems like Semple’s team has taken precautions against any future violations; as of today, I would find it hard to use the usual arguments for when terms of service don’t apply (e.g. terms are hard to access, there wasn’t enough notice), given that the Kapoor rider is the first paragraph on the product page.[14]
[1] Henri Neuendorf, Anish Kapoor Angers Artists by Seizing Exclusive Rights to ‘Blackest Black’ Pigment, artnet (Feb. 29, 2016), https://news.artnet.com/art-world/anish-kapoor-vantablack-exclusive-rights-436610 [https://perma.cc/W5MK-Y3RP][ https://web.archive.org/web/20250202192151/https://news.artnet.com/art-world/anish-kapoor-vantablack-exclusive-rights-436610]
[2] Id.
[3] Sarah Cascone, Anish Kapoor’s Controversial Vantablack Works Finally Make Their U.S. Debut, artnet (Nov. 9, 2023), https://news.artnet.com/art-world/anish-kapoor-vantablack-2391684 [https://perma.cc/6FNH-535D][ https://web.archive.org/web/20241213194131/https://news.artnet.com/art-world/anish-kapoor-vantablack-2391684]
[4] In the 1960s, Yves Klein patented a mixture of blue pigment. Truman Chambers, The Vantablack Controversy: Anish Kapoor vs. Stuart Semple, The Collector (Jan. 28, 2021), https://www.thecollector.com/vantablack-anish-kapoor-stuart-semple-controversy/ [https://perma.cc/YR8U-C3RP][ https://web.archive.org/web/20250217165508/https://www.thecollector.com/vantablack-anish-kapoor-stuart-semple-controversy/]
[5] Id.
[6] Anish Kapoor (@dirty_corner), Instagram, https://www.instagram.com/p/BOWz73wgj7R/?utm_source=ig_embed&ig_rid=f5f98c8a-ee94-4e08-ad90-5bc4076ca0d9 [https://perma.cc/4EV7-Q3ZN] (last visited Feb. 28, 2025)
[7] Product Page, BLACK 2.0 - The world’s mattest, flattest, black art material by Stuart Semple, Culture Hustle, https://www.culturehustleusa.com/products/black-v1-0-beta-the-world-s-mattest-flattest-blackest-art-material?srsltid=AfmBOoo2RLFnZJMem0LcTkT6Y52y0akALGq9tSUg9d47zZPWqG9gZ3-b [https://perma.cc/2VDZ-N4SL][ https://web.archive.org/web/20250228155557/https://www.culturehustleusa.com/products/black-v1-0-beta-the-world-s-mattest-flattest-blackest-art-material?srsltid=AfmBOoo2RLFnZJMem0LcTkT6Y52y0akALGq9tSUg9d47zZPWqG9gZ3-b] (last visited Feb. 28, 2025)
[8] Product Page, Black 3.0 - the world's blackest black acrylic paint, Culture Hustle, https://www.culturehustleusa.com/products/black-3-0-the-worlds-blackest-black-acrylic-paint-150ml [https://perma.cc/2WFE-38DY][ https://web.archive.org/web/20241211210900/https://www.culturehustleusa.com/collections/paint/products/black-3-0-the-worlds-blackest-black-acrylic-paint-150ml] (last visited Feb. 28, 2025); Product Page, *THE WORLD'S MOST GLITTERY GLITTER- Diamond Dust by Stuart Semple, Culture Hustle, https://culturehustle.com/products/the-worlds-most-glittery-glitter-75g-diamond-dust-by-stuart-semple?srsltid=AfmBOopFE2Qc9Fb1h9GYC0eiIedeGvGZv7vXd3P1THqv--dtNGCFK2RJ [https://perma.cc/MF4H-UAJD] (last visited Feb. 28, 2025)
[9] Product Page, BLACK 4.0 - The blackest black paint in the known universe *NEW*, Culture Hustle, https://www.culturehustleusa.com/collections/black/products/black-4-0 [https://perma.cc/MVL5-DUTD][ https://web.archive.org/web/20250222074550/https://www.culturehustleusa.com/collections/black/products/black-4-0] (last visited Feb. 28, 2025)
[10] Diemut Strebe, How to make a diamond disappear, MIT Ctr. for Art, Sci. & Tech., https://arts.mit.edu/people/diemut-strebe/ [https://perma.cc/GQ56-8E4T][ https://web.archive.org/web/20241210030142/https://arts.mit.edu/people/diemut-strebe/] (last visited Feb. 28, 2025)
[11] Kassy Cho, No One Can Believe How Petty This Artist Is For Banning Another Artist From Using His Paint, Buzzfeed (Dec. 22, 2016), https://www.buzzfeed.com/kassycho/petty-in-pink?utm_term=.igJ11aY6q#.ntMkkXQOm [https://perma.cc/N8KN-4KNX][ https://web.archive.org/web/20230201103437/https://www.buzzfeed.com/kassycho/petty-in-pink?utm_term=.igJ11aY6q#.ntMkkXQOm]; Jill Blackmore Evans, Stuart Semple and Anish Kapoor: The Art World Feud Over Vantablack and Black 2.0 Paint Pigments, Format (Apr. 6, 2017), https://www.format.com/magazine/features/art/anish-kapoor-stuart-semple-vantablack-blackest-black [https://perma.cc/LML3-QQU4][ https://web.archive.org/web/20241209135506/https://www.format.com/magazine/features/art/anish-kapoor-stuart-semple-vantablack-blackest-black]
[12] Thunder From My Heart, AND THE NARC IS THE LISSON GALLERY, Tumblr (Jan. 5, 2017), https://thunderfrommyheart.tumblr.com/post/155448102813/and-the-narc-is-the-lisson-gallery [https://perma.cc/3XFY-S8K5][ https://web.archive.org/web/20220901000000*/https://thunderfrommyheart.tumblr.com/post/155448102813/and-the-narc-is-the-lisson-gallery]
[13] Supra note 11.
[14] Supra note 7.