On December 10, 2013, the Court of Cassation, the highest court in the French judiciary, confirmed the first judgment of the Court of Appeal of Nancy and its constant jurisprudence since 2006 that perfume is not eligible to be protected under copyright law. The case involved L’Oréal suing a company that made and sold products replicating those of its perfume division, Lancôme. While Lancôme offers Trésor, the rival launches La Valeur and so on. The case centered on the perfume, but the other elements of the products–trademark and packaging–were also touched upon.
In the decision, the court explained that “a form that can be perceived by the senses” (the olfactory sense in this instance) can only be protected as far as it is identifiable with enough precision to be communicated. It follows then that fragrance, which elaboration process is not a work of intellect, but rather of technical know-how, doesn’t have a form with these characteristics (identifiable, precise, communicable), and thus cannot benefit from copyright protection. In other words, fragrance is too subjective to be clearly defined.
The court’s concession that copyright protection would be in principle possible is good news, since previous decisions haven’t admitted this much. But this doesn’t alter the negative outcome, since precise and clearly identifiable are not terms applicable to scent. How can you pin down something that has no tangible form and evaporates before your eyes? One person may smell tuberose in Dior’s Poison, another may notice grapes, and yet someone else– strawberries. And all three of them would be right. (There is a vibrant debate on the ways to describe fragrance with absolute precision through analytical methods and sensorial analyses by professional perfumers, but it’s a new challenge.)
Some may argue that the lack of copyright protection is a detriment to the consumer. The fragrance industry is often described as “secretive” and “closed,” because the only way to safeguard the perfume formula is to keep the information private, or within the company. It worked until modern analytical methods developed enough to reveal the formula to an unprecedented degree. The moment a big launch lands on the market, its samples have already been analyzed by the competitors and perfumers have neat printouts on their desks. The legions of Angels and Coco Mademoiselles wouldn’t have been possible in the days when the only instrument for copying was the perfumer’s nose.
What we have is the worst of all outcomes: the overwhelming number of near identical launches as everyone tries to capture the success of the latest hit and a dearth of reliable information communicated to a consumer. We don’t know what is inside the bottle. We have to take the brand’s word for it that it’s worth the money and the industry’s promise that it’s safe for our health and environment. As the regulatory pressures on the US and European governments indicate, consumer groups aren’t willing to accept this uncomfortable position and the encroaching regulations threaten fragrance masterpieces more and more.
My first reaction when I heard the decision was of indignation–what do you mean that the creation of perfume is not a product of intellect? But at the same time, I doubted that a positive copyright decision would have averted the current ills of the industry. It would certainly encourage rival claims by numerous bodies involved in creating a fragrance, and the phrase “Pandora’s box” immediately comes to mind.
On the other hand, if perfumers had means to defend their work and lay claim on it, it would have a tremendous impact. But we’re far away from such a scenario, since perfumers don’t even own their formulas. Today the formula may not have copyright protection under law, but its ownership is clear–it belongs to the company that employs the perfumer. In some cases, the formula is also revealed to the client, which is how some big brands can reformulate fragrances without even having to consult the original creators.
The exception is the independent perfumers and those working as in-house creators for fragrance brands. Although it’s a small group within the industry, it doesn’t have to abide by the standard code of practice within large fragrance houses, silence and secrecy. Perhaps these voices should start framing the discussion.
This topic can be explored at length, but I would love to hear your take on this seminal decision or the general topic of copyright for perfume compositions.
Source: Cour de cassation, chambre commerciale, 10 décembre 2013, pourvoi n° 11.19872
108 Comments
Persolaise: As you say, “This topic can be explored at length.” Maybe we should organise some sort of symposium.
There’s no way I can express all my views on this subject here in this comment, so I’ll offer a single thought.
I wonder what the Copyright powers would have to say on the subject of film. If someone re-made Casablanca, word-for-word, shot-for-shot, scene-by-scene, and simply gave it a different name, then it would be easy to argue that the original film had been ‘copied’.
But what if a film-maker had decided to create a cleverer, more subtle copy of Casablanca? At what point would the copy be deemed to have crossed the line and be seen to have infringed copyright laws? Surely, the judgement would depend to a great extent on subjectivity, as in the case of perfume. And yet movies, music etc are covered by copyright. So why is it permissible for subjectivity to be allowed into the picture in the realms of film and music, but not in the world of perfume?
Hope my rambling makes sense. January 16, 2014 at 7:54am
Hannah: Your Casablanca example has probably already happened.
Music and film are protected but copies are made all the time.
If you look up Kimba the White Lion and Lion King comparisons, several scenes seem to be copied. But it has also been argued that Kimba the White Lion stole those scenes from Bambi.
There are more haute examples, too. January 16, 2014 at 8:45am
Hannah: Just one example, Kurosawa and Spaghetti Westerns. January 16, 2014 at 9:00am
Victoria: I just remembered watching a Bollywood film with my husband. At some point, he said, “oh, wait, they’re doing Matrix!” (Or perhaps, it was some other big film, I don’t recall) And sure enough, the entire scene was copied. But that being Bollywood, it had its own flourishes. January 16, 2014 at 12:28pm
Victoria: It inspired me to read up on the response to Kimba the White Lion. January 16, 2014 at 12:26pm
Di: Gosh, I thought the Lion King was stolen from Hamlet !
The rule that is applied to movies is the same as that which are applied to written works. In the U.S. one can not copyright an idea, only the particular expression of the idea. For instance the central idea of the movie 48 Hours, a comedy featuring an uptight cop and cool rebel interact and also solve some crime in which both their personalities and skills are necessary to focus and catch the killer, has been remade about once every three months ever since. (See, last summer’s the Heat, as a fairly recent example).
Casablance actually used a number of cliche elements of the time (cynic learns to become patriotic, a love triangle involving two heroic men and a beautiful woman).
In all ads in the U.S., it is permissible to compare your product to another by name, as long as you don’t slander it. So one can call The Heat, the funniest pair of cops since “The Other Guys” (The previous summer’s version of 48 hours.) January 18, 2014 at 12:47pm
Victoria: I think that it’s an excellent point, and in light of what Hannah mentions below, I wonder what the response (and recourse, if any) would exist to such an action.
This makes me think too, if there were a copyright on perfume, would Rive Gauche by Yves Saint Laurent, a fragrance widely considered a masterpiece, been possible. It’s a very close copy of Calandre by Paco Rabanne. January 16, 2014 at 12:30pm
Rowanhill: This is exactly what I thought. As much as I would like perfumers to receive credit for their work, where is the line between a copy and yet another original interpretation. As long as the market and not the artistic originality is the driving force behind perfume industry this is very difficult to solve. January 17, 2014 at 4:52am
Victoria: Yes, that’s what it is in a nutshell. For me, your last sentence says it all. January 17, 2014 at 8:33am
Sandra: Interesting article. I have always wondered how those fragrance imposters get away with what they do, like the ones they sell at pharmacies here in the US. They are body sprays and they say something on the bottle like- if you like CK one you will love something something and it smells just like CK one. It always made me think how they can replicate so well? And not get in trouble? Since they are no copy right laws they have a small business replicating top selling fragrances.
On a seperate note, I saw the Jewels by Jar at the Met- amazing !!! January 16, 2014 at 7:54am
Victoria: Just as a side note, in this case, the court did rule that the impostor company owes some damages to L’Oreal for trademark infringement, but on the subject of perfume, they weren’t willing to concede.
I’m so envious that you got to see the exhibit! I’ll probably miss it, but I would love to go. January 16, 2014 at 12:32pm
Sally: Yes I was wondering about those too – perfumes that say “our version of” – I’ve seen them for No 5 and various Estée Lauder’s. They do smell very similar, if only a bit “thinner.” January 17, 2014 at 2:01am
george: In the same way you cannot copyright a combination of previously existent technologies (ie. a tv/microwave/hairdryer combination device), you cannot copyright a perfume, because it is a combination of previously existent molecules. You might argue that a novel- say- is a combination of previously existent technologies- i.e. words- but they add up to numerous levels of much more definable meaning- sentences, verses, paragraphs, plots, characters, speech, which are all the product of the fact that words are significatory and an integral part of a system for producing meaning; whereas there are no established significatory systems of meaning for olfactory molecules: we might talk about perfumes in terms of development, chords, plot and character, but they are generally metaphors for the perfume not the recognition of literal elements. I think of perfume as more of a chord or sound that has an envelope of attack sustain delay and decay, and you wouldn’t be able to- say- copyright that famous chord at the end of Strauss’ Salome when she kisses John the Baptist’s decapitated head. Beyond that- and with regard to any complaints about the perfume business- I think there is a huge amount of space in the perfumery landscape to which perfumers could travel but are not going. As Schopenhauer said, “Talent hits a target no one else can hit. Genius hits a target no one else can see.”: if anyone wants to explore those new territories it might be best that they put on their metaphorical walking boots, or at least follow those who are doing so. And if you are one of those people who does do that, and do create a range of extremely bold and beautiful new perfumes, take comfort that Guerlain still has the name it has inspite of the lack of ability to copyright perfume formula. Of course the gas chromatograph is a worry as it can be understood as a means to “xerox” formulas, but at the same time, if a perfumer or company was repeatedly bold and visionary enough I feel they could still make a determinable and decisive name for themselves their brand and their products, because that is was genius does. (a long reply, but such an interesting article that it gave me a lot to think about!!!!) January 16, 2014 at 8:00am
DDJ: …A long and excellent reply. January 16, 2014 at 11:12am
Victoria: Thank you for this interesting comment, George. It might well be a separate article. Of course, one can say so much about this topic that I’m glad to read any further thoughts on this.
I completely agree with you when you say that “there is a huge amount of space in the perfumery landscape to which perfumers could travel but are not going.” And that, as you note, has little to do with copyright per se. I don’t have much sentimental attachment to the old days of perfumery, which had many negative elements too, but the willingness to take risks was present. Nowadays, nobody dares to take risks and those who do aren’t rewarded. Of course, perfumers rarely have the final say in the matter. January 16, 2014 at 12:41pm
george: I think another small point to make is that although I have used the term copyright in a way that is also means patent, I believe that copyrighting perfume would create conflict in the case that you were copyrighting a perfume that contained a patented or process patented chemical that would infringe upon the right of the patent owner to create and sell their product. It is also questionable whether you should be able to copyright materials (perfumes) that include materials that are someone else’s designated intellectual property or the result of a process that is someone else’s intellectual property. The same would also be true for perfumery bases which would also become copyrightable, and therefore if used would mean the base’s rights owner would have part ownership of any copyright for any perfume created using them. At this point, there would seem to be a parallel with music sampling, where the inclusion of someone’s else’s property within a work also gives them rights over that work (and sometimes complete rights, as the Verve learnt to their horror and the Rolling Stones to their pleasure). However, to take an example from painting, you can argue that a particular image can be copyrighted because it is not merely the sum of the molecules used to create it- i.e. if you used paint with a patented pigment molecule, you could argue that the image copyright is significantly removed from the chemical patent or process patent to not infringe upon that patent. I think to therefore claim that perfumes should be able to be copyrighted that you would have to argue that a perfume is more than just the sum of the molecules (if synthetically produced or produced using a new method, subject to patent; if natural, not able to be patented full stop) The court of cassation did this with regard to the Tresor it seems, by including trademarking etc, but stopped short of saying that the molecular composition could be copyrighted or patented solely on its own terms. I have to say that I think they got it right because I don’t think you can consider a perfume to be more than the sum of its molecules, and as those will exhaustively be patented, expired patented, or not possible to be subject to patent, because they are natural, and there is not a significantly abstract enough way of understanding perfume, except as the sums of its molecule, that that would make it not capable of being copyrighted. January 16, 2014 at 3:08pm
Anne of Green Gables: Thanks for your interesting comments, george. The end result is the sum of molecules but it involves a creative process by an author and that’s why I think it should be protected in some way. Like paint, these molecules are mediums of expression. I think it comes down to whether perfumes can be considered as work of art and perfumers as artists. All in all, it’s a tricky problem. BTW, I think the trademark regarding Tresor only applied to packaging, names etc. in the court. January 16, 2014 at 3:51pm
george: Ann, I want to agree with you, because I too believe there is a creative process, but my mind just isn’t taking me there! Maybe more perfumers should publish books like Ellena does so that judges become aware of that creative process, or alternatively the perfumer gets it copyrighted by another route- i.e. in book form. Thanks for the point re the trademark, although I guess that the judgement that damages had to be paid meant that the two products could be confused, although- in terms of what is in the bottle- based maybe on no more of an informed opinion than they both contain ‘perfume’. January 16, 2014 at 4:41pm
Victoria: The court’s reasoning, though, was based on a different premise. Because you see, the court says that in principle a perfume could be a copyrightable work (“que la fragrance d’un parfum est ainsi susceptible de constituer une oeuvre de l’esprit protégeable”), but because it’s not sufficiently precise, etc., it doesn’t benefit from the protection. I still think that your points are valid and very important, though. January 16, 2014 at 6:17pm
george: Then I agree with their decision but not their reasoning! But I must also admit my head (which agrees with the decision) and my heart (which doesn’t so much) feel a bit at odds on this. I shall imagine a bottle of tresor singing I’m still here by Stephen Sondheim in the manner of Shirley Maclaine and that will make me feel better. http://www.dailymotion.com/video/xnlgkl_shirley-maclaine-i-m-still-here_shortfilms January 16, 2014 at 6:48pm
Victoria: But at the same time it makes sense that the legal counsel didn’t focus on the formula (list of ingredients) itself. For instance, what’s the use of copyright a list of ingredients, if someone else can swap lavender for lavandin and claim that their formula is now different. But the smell may be the same.
I love this clip! 🙂 January 17, 2014 at 8:17am
Charles G: This is an excellent point, and this is why chefs cannot copyright individual dishes or recipes, generally. I was lucky enough to have dinner at the French Laundry last week, and that meal was not just having dinner– it was taking part in the artistry of one of America’s great artists, but his palate is food. But similar to perfumery, the expression of the enjoyment of the meal is subjective, and the combinations of flavors (like the combinations of scents) can vary wildly with the taster. While I could recreate simulacra of the dishes I ate at home (and I have the French Laundry cookbook), I cannot exactly reproduce the flavors of what I had that evening– there are way too many variables. The quality/freshness of the ingredients, the exact methods of preparation, preciseness of plating, etc all go into the artistry of the dish. I think this is part of the reason indie perfumers focus on the quality of their ingredients so much– a knock off may smell similarly, but will not use the exact amounts or the exact ingredients, so there will be something lost in the translation. Will it be noticeable to the average consumer? Maybe, maybe not, but it will often be noticeable to connoisseurs. Anyway, I don’t have a real point, just bringing another perspective. January 16, 2014 at 2:13pm
Victoria: It was also Chanel’s technique–to use the most luxurious materials, which made perfume impossible to copy. January 16, 2014 at 2:17pm
george: A point to make the alleged creators of bannoffee pie cry, methinks! January 16, 2014 at 3:11pm
mysterious_scent: Excellent points! Your analogy between food and perfume reminds me a neology book I read, something like our taste buds and odour detector in the nose actually connect to the same brain part (it is the same piece of brain that process the two types of info) January 17, 2014 at 4:23am
Sally: Excellent points – a lot to digest and think about… January 17, 2014 at 2:03am
Isabelle Gelle: I’d say the answer on this copyright issue is to go back to making perfumes using the highest percentage of naturals as possible.
A French perfumer and colleague recently took a training in the latest chromatograph technology. Although he did manage to analyse up to 90% of Angel, when they tried to analyse a perfume composed of naturals, only 55% of the compounds could be detected. For example, the number of aromatic compounds in a pure rose are such that even the best chromatograph analyst will find it hard to exactly assess their percentage when blended in a perfume with other naturals of similar complexity.
In my view, a return to original perfumery in the same line as the Jicky or Shalimar of the late 19th century, early 20th where only 1 or 2 ingredients were synthetic, would put off companies whose specialisation is to duplicate existing formulas.
We would also see less new perfumes being launched on the market as it does take more work and more time for the artist perfumer to achieve a fragrant work of art. January 24, 2014 at 2:15am
Victoria: It would certainly be wonderful, but I don’t know how realistic it is to expect the number of launches to go down or the big brands to use mostly naturals in their compositions. One main obstacle is the price of naturals and the limited availability of many natural oils. But you’re absolutely right, the more naturals the blend contains, the more difficult it is to analyze with perfect precision. January 24, 2014 at 7:46am
Cornelia Blimber: I never thought about this, so this is a thought provoking text! Interesting, but difficult, maybe you need some juridical knowledge to think properly about this.
At what point a variation on a theme becomes an imitation, or even an exact copy?
Was Guerlain’s Ode a copy of Joy, or a variation? And what about No 5 and Le Dix, No 19 and Silences, etc.?
In our days there seem to be more imitations of succesful perfumes than original creations.
What is the reason? The restrictions of IFRA? Or perhaps because the perfume buying crowd is bigger and hoi polloi must be pleased?
What is the role of the perfume buyer? After all, they make these copies because we (not the readers of BdJ of course) buy them.
In my opinion niche perfumery makes no difference.
And then those regulations! Why did they simply forbid some ingredients, instead of researching what the real damage could be?
What you smell in a perfume is subjective indeed. But there is a formula, and that is the form of the perfume. As in a piece of music: what you hear is subjective, but the score is the form.
However, this is not easy, I need more thinking and I am curious what others have to say on this topic.
Thank you for another interesting aspect of perfume! January 16, 2014 at 8:09am
Anne of Green Gables: Hi Cornelia, I don’t know whether you know it already but you might be interested in this: http://www.wipo.int/wipo_magazine/en/2006/05/article_0001.html. January 16, 2014 at 12:43pm
Victoria: Tresor as a hugely popular perfume has inspired so many copycats all over the world that L’Oreal has been busy in courts, not just in France! January 16, 2014 at 12:51pm
Cornelia Blimber: Thank you, Anne, most interesting! This article shows how complicated this issue is.
But why should Lancôme be alarmed? Never heard of Kecofa or Female Treasure before. Maybe because of the precedent. January 16, 2014 at 5:10pm
Victoria: Female Treasure as a perfume name is a pretty horrible one. Kecofa doesn’t have much ring to it either. 🙂 January 16, 2014 at 6:41pm
Victoria: Before perfume lines were the deluxe extensions of the fashion brands, and now they make more money than the pret-a-porter and couture, so it has become a major business and it’s operated as such.
You raise a very important point about the similarity of many renowned perfumes, which is actually one of the issues that complicates the case further. For instance, even in case of Tresor, many argued that it’s itself not an original fragrance but a variation on Sophia Grojsman’s Coty Exclamation. January 16, 2014 at 12:49pm
Anne of Green Gables: One of the reasons the Dutch Supreme Court ruled that the scent of Tresor was protectable by copyright was that it ‘bore the personal stamp of the author’. A perfumer will inevitably have recurring notes/themes in her composition which may be part of her distinctive signature. I wonder, when does the personal stamp turn into self-plagiarism? January 16, 2014 at 1:12pm
Victoria: That becomes a grey zone. I think that one of the reasons why a positive decision would have unpredictable consequences. Imagine! January 16, 2014 at 1:55pm
Lucas: This is some sort of provocation, isn’t it!?
What is a perfume if not a work of intellect. A perfumer has to spend a lot of time developing the formula, balancing the ingredients, making sure the composition is stable and that notes are well blended with each other. Plus they have to remember not to break the rules settled by IFRA!
If perfume was a simple know-how anyone could make perfumes, no matter if they had a chemistry background or not, the profession wouldn’t really have a meaning here.
But one does not simply buy perfume ingredients and blend a perfume in their kitchen or a garage. Not to mention that one does not simply create a best selling creation.
I can understand that perfumers don’t have rights to their own formulas as they develop them on behalf of their mother-company (so and actual owner of their work is Givaudan, Firmenich etc.) and it should be protected by a copyright so that we’re not flooded with mere duplicates of a product. But a name is also an important factor for a perfume, isn’t it?
Sure I cannot understand acts like puting a copyright on a name that is – lets say – a name of a NYC district (looking at you Bond No.9 and your law case with smaller brand!) but it plays on my nerve when I see a couple of different scents bearing the same name. January 16, 2014 at 8:32am
Victoria: Completely agree with you. For instance, the modern technology allows one to make the passably sounding music without knowing all that much about the scales or having the conservatory training. Still, one doesn’t deny that the composition of music is a product of intellect.
As perfumer Bernard Chant used to say, “we smell with our mind.” January 16, 2014 at 12:54pm
Ines: I started with indignation and then, I just thought, oh, great, one more thing to cause frustration and I don’t want that.
It makes no sense to me that a formula for a perfume wouldn’t be copyrighted but then again what do I know?
I’m honestly more upset with the imposed stupid regulations on what can be used in those formulas than I am with copyright issues (I hope all hell is not going to rain on my head now, I know copyright is a big issue in the US). January 16, 2014 at 9:10am
DDJ: It (copyright) is a big issue here because copyright is ultimately about money and commerce not preservation of an artist’s “rights” or ownership.
The entities that benefit most from coyright are large businesses because having a copyright is one thing; being able to ENFORCE it is another and requires large amounts of money.
For the lone perfumer sitting in her garret (in the US) they might as well not exist. January 16, 2014 at 11:26am
Victoria: I agree with many of your points. Since the article was getting quite long as it is, I didn’t specify that the notion of “droit d’auteur” under the consideration here gives many more rights than the economically oriented copyright. So, according to my French attorney friend, in many ways, the implications might have been even greater. January 16, 2014 at 1:03pm
Victoria: True, the regulations are another kettle of fish or maybe, a can of worms. 🙂
The positive copyright decision would certainly have major implications, and in the short-run, they might have been painful. But who knows, if the long-run benefits may not outweigh them. January 16, 2014 at 12:58pm
Hannah: I thought this was a good thing. Fashion design is only protected if a trademark is being infringed upon (I think). I think that’s how it should be.
Copyright protection hasn’t made art, film, literature, or music more original. January 16, 2014 at 9:18am
Rachel: Why is it good? I don’t know much about copyright, it may be a stupid question, but I’m curious why no copyright is good. January 16, 2014 at 10:53am
Hannah: Well, it is a matter of opinion and so this is my opinion (which can’t be wrong, but can be based on strange logic).
If perfume was protected by copyright, wouldn’t the chypre be Coty’s intellectual property? That probably would have helped Coty a lot. But would it have done anything positive for perfume consumers, other perfumers, and other houses (especially small houses)?
In the late 70’s, slasher movies were beginning to be a success. Then throughout the 1980’s it just spiraled out of control and every kind of slasher movie was being made, no matter how stupid the concept was. They all share common tropes and some of them are barely distinguishable from each other.
It’s not that different from all the fruity florals or Angel copies.
So if the director or writer of one of the first slasher movies said ”This is my formula and only I can use it” then that would have stifled creativity for other screen writers and directors.
If gourmand notes+patchouli was the property of Thierry Mugler, wouldn’t that stifle creativity as well? January 16, 2014 at 11:05am
Hannah: And I mean Thierry Mugler the brand, not the actual person. I guess I alternatively could have said Olivier Cresp & Yves de Chiris, but I don’t know if they would be the ones who would be protected. January 16, 2014 at 11:07am
Ashley Anstaett: Hannah, I’m sort of in the same boat as you on this, I think. My first thought on reading this article was also Coty’s Chypre, and how too many restrictions could actually stifle creativity. An exact copy of something rubs me the wrong way, but even making a small change can often make a huge difference and lead to new innovations.
You also mention how it can positively impact perfume consumers. I had that thought as well, but I’m not sure exactly how, although it was my instinct so I suspect there is some truth to it. I thought maybe in the way of prices or simply enjoying new innovations in the industry/benefitting from an increase in competition? I’d be curious to hear anybody’s thought from the consumer’s perspective! January 16, 2014 at 1:15pm
Victoria: Your comment elaborating your point is very interesting, and actually, there are many people in the industry who see it the same way. Some argue that perfume formula is like a recipe, and you can’t copyright a recipe (although the process can be patented, which is the case already for the molecules that go into perfume). January 16, 2014 at 1:06pm
Rachel: What a thoughtprovoking article! I didn’t even know perfumes had no copyright protection. Secrecy aside, how else can be the formulas be guarded? January 16, 2014 at 10:51am
Victoria: Thank you, Rachel! Trade secrets and patents are the main means to protect the formula and the know-how. January 16, 2014 at 1:07pm
Solanace: This was really refreshing and thought provoking! Perfumery might be less ‘inteclectual’, than, say, music, but only if we are talking in Aristotelian terms, as in ‘music is more removed from the senses/closer to mathematics’. Which is a bit old fashioned, to say the least. (The fact that perfume speaks to the loins too is a plus, isn’t it?) On the other hand, perfumery, as an art, is clearly endangered today by arbitrary regulations and a commercial system that fails both to preserve the patrimony of the past and to generate innovation. And as Horace said in the Ars Poetica, these are the only two ways, ‘ either follow tradition or invent consistently.’ But what we have instead, at least for the most part, are copies of copies of copies, which might not be enough, I’m afraid, to create a life long interest in fragrance among most girls, who are only exposed to mainstream offerings. It would be great if perfumers who see themselves as artists and not only technicians could gather in an association alternative to IFRA, through which the business of perfumery could be administrated (and marketed) in a cleverer, more sustainable way. January 16, 2014 at 11:50am
Cornelia Blimber: Hi Solanace! Aristotle,Horace, the Aeneid..are you a fellow classicist?
Btw, which Aeneid did you buy? January 16, 2014 at 12:11pm
Solanace: Hi Cornelia,
I’ve been studying Kepler’s and Ptolemy’s astronomy for over a decade, and now I’m shifting to Ancient technology, starting with Vitruvius’ notion of machanism. But I’m interested in all sorts of things, specially fun stuff, such as Catullus and Aristophanes, or Montaigne. The Aeneid edition I got is Odorico Mendes’ Brazilian Portuguese translation, from the XIX Century, which might not be the most readable but certainly is extremely beautiful, rich and lively. And it has the latin text facing the translation :), along with ellucidative contemporary notes. What about you? I really enjoy reading your comments! January 16, 2014 at 1:23pm
Cornelia Blimber: Thank you, Solanace! Astronomy is beyond my capacities, I envy you. I have some populair books about astronomy and physics ,and when I write down what I am reading, I can follow. I am often astonished how far the philosophers before Socrates came by sheer thinking.
In my next incarnation I hope to have the brains for physics and mathematics.
I graduated from the Amsterdam university in Greek and Latin.
That Aeneid sounds amazing! January 16, 2014 at 1:54pm
Solanace: I envy you, as I wish my Latin and Greek were much better! And I totally agree about the Pre Socratics! I am giving a course on epistemological relativism, and its amazing how they anticipated most of the contemporary debate. So happy to have found a fellow perfumista-classicist! January 16, 2014 at 4:41pm
Solanace: And I only got that Aeneid out of the shelf now because of your comment, so thank’s again! January 16, 2014 at 4:42pm
Cornelia Blimber: haha, we are envying each other!
Please enjoy your Aeneid, especially book IV and VI. With a translation in Portuguese your are more close to the atmosphere of the original than with an English one, I think. And these old translations are often so poetic! January 16, 2014 at 4:56pm
Solanace: Exactly, it is very poetic and, as I said, lively. I will enjoy. 🙂 January 16, 2014 at 5:29pm
Victoria: I should clarify that “the work of intellect” in the language of the court was in the context of elaboration or creation of perfume, but still… The training to learn perfumery is as painstaking and timeconsuming as any other apprenticeship, music or dance included.
And you’re right, perfumers should create their own body, although not necessarily a new IFRA, but a professional association of sorts. Today there are only some regional organizations. January 16, 2014 at 1:13pm
Solanace: Oh, no, we surely don’t need a new IFRA! :p January 16, 2014 at 4:43pm
Victoria: Heavens no! We already have 2, if you count IFRA North America, which is technically a separate organization operating under IFRA’s name. January 16, 2014 at 6:34pm
Eric: Have such cases been tried in the US courts? Strange that the US has no policy on perfume copyright, since it’s usually such a big concern here. January 16, 2014 at 11:53am
Victoria: I’m mostly familiar with the European cases, so I would need to do some research to answer your question. Perhaps, someone else can comment. My understanding is that the US cases have been usually tried as the patent or trademark infringement, rather than the copyright. January 16, 2014 at 1:18pm
Ann: Very sorry. I am about to be long-winded. Thank you so much for bringing this case to our attention. Really really interesting!!!
Copyright is only as useful as it is possible to enforce it. If identifying a “copy” is not possible through science or training, then the copyright has no enforceable value. Alternatively, a company can create a product that is entirely unlike the original and still profit enormously from the suggestion of it comparability.
For instance, a company that sells blue cans of Boca Bola Cola that taste like fizzy blueberry chemicals, will still be profiting from the association in consumers’ minds of Coca Cola. The very fact that Coca Cola has a world market, and consumers expect 1) a drink, 2) a carbonated drink, and 3) a sweet carbonated drink—all expectations created by Coca Cola over the last century—help sell the obscure and bad tasting Boca Bola. Can Coca Cola sue for copyright? It gets tricky. (Trademark issues in the United States (names, terms, symbols etc.)—or how much the cans might look like Coke cans is another issue—different legal question and standards.) Still, you ask, does the sale of Boca Bola harm Coca Cola? Possibly. Maybe those who would save up for a bottle of the real stuff instead spend their dosh on six cans of the fake inferior…
What I don’t understand about the Dec. 10 finding in France is the issue of authorship. Whereas the author/designer/chef?? of Coke is no doubt obscured by reformulations and multiple company involvement and the mists of time, doesn’t the perfume nose, its creator, have copyrights to his or her own formulas? Copyright probably could not protect the nose from another company that simply makes a sort-off facsimile of her fragrance that has a similar name and sells it “wink wink” as something that those who like the nose’s fragrance… (back to the enforcement issue), but at least the art of the nose would be respected by law, if not protected by law.
I can understand why a smell or scent might not be copyrightable, but a specific formula? That should be copyrightable.
My guess is that the formulas are not presented for copyright because the companies do not want to disclose what the actual formulas are. So what is left is simply the smell. And copyrighting a smell would be very subjective and something the courts would not want to, or feel qualified to, adjudicate.
Good or bad for the consumer? Wanna try Boca Bola? (Okay, I made that up 🙂 ) January 16, 2014 at 12:25pm
Victoria: Your hypothetical Boca Bola example is great and makes it easier to draw parallels.
Do you watch Anthony Bourdain’s No Reservation show? On his visit to Ukraine, he went to McFoxy’s, a suspiciously McDonald’s like venture. Which is doing business right next door to Kiev’s McDonald’s!
But to go back to your point about the authorship, the perfumer is nowhere in there, based on my understanding, because she doesn’t own her formula.
If the formula is just a list of ingredients, I don’t know if it would quality either. Food recipes don’t quality for copyright. January 16, 2014 at 1:53pm
Ann: Apparently my not really knowing what I am talking about is not stopping me from talking!
But… 1) I totally get that most perfume noses do not own their own formulas exactly, or at least not the right to copyright them… this happens in the book industry all the time. Authors’ works can be copyrighted, but many authors sign away their copyrights to a larger company or organization for whom they write and the company or organization owns the work and has the the copyright to the material, not the author. And 2) Here my ignorance only deepens, but then what about patenting formulas? In the US someone can patent an invention that is unique, granting property rights to the inventor… perhaps the perfume industry needs to create its own hybrid perfume patent law (passed into law by the governing legislative body, whatever that is in whatever country–and yes I totally see that infringements would quickly move ‘off shore’…) I imagine that the cosmetics industry has very similar problems. A lipstick color and type gets widely marketed by a big name company, and then a copycat soaks up profit from the fallout. And here we are, back at enforcement and the question of how much a perfumer, or a fashion company, or a cosmetics company, is actually harmed by the copycat?
Thanks again for sharing this story Victoria! I just never gave it any thought before. January 16, 2014 at 2:26pm
Victoria: This is an interesting article with good comments, and it might answer some of your questions better than I can attempt to:
https://blogs.law.harvard.edu/infolaw/2006/07/06/copyrights-for-perfumes/
But as far as the patents go, the captive molecules used in fragrances are patented. Without access to those molecules, copying a fragrance can be extremely hard, if not impossible, so many companies try to develop captives. This is one of the ways to make the fragrance hard to replicate. January 16, 2014 at 2:58pm
Ann: Yes!! Thanks for the link. And it brings up another really interesting point about creations we associate with women versus those with men. Because I have been dallying all morning in an area I know nothing about, I have to ask, why stop now? So, I’ll just add the question–if perfumers were still nearly all men, would plagiarism of their work be so easily dismissed? I realize that there are mountains and rivers in the answer to that question… but I suspect the answer would still be ‘no.’ Same for bloggers. Whether it is men copying women or women copying women…women plagiarism victims just do not get the same indignation in society as men whose words have been stolen. January 16, 2014 at 3:27pm
Ann: P.S. It is Sophia Grojsman’s Tresor for which copyright has been so elusive! January 16, 2014 at 3:31pm
Victoria: By the way, my French attorney friend raised another interesting points–Tresor was created by an American perfumer for a French brand. January 16, 2014 at 6:28pm
Victoria: Traditionally the industry has been very male dominated, so I’m not sure if the gender makes any difference in this case.
By the way, it’s off-topic, but your comment about the gender issues made me think of the New York Times’s article about Wikipedia. There was a very interesting point about the gender bias in the Wikipedia listings. It’s towards the middle of the piece:
http://www.nytimes.com/2014/01/09/fashion/Wikipedia-Judith-Newman.html?_r=0
“If there’s consensus on one issue within and without Wikipedia, it’s that the male-female ratio of Wikipedia editors and administrators — 85 to 90 percent of them are male — does create a gender bias, said Maia Weinstock, the news director at BrainPOP and a Wikipedian who has been instrumental in raising awareness of the imbalance.” So, women have to do a lot more to merit an inclusion. January 16, 2014 at 6:26pm
Ann: Judith Newman is delightful…! Thanks for the link! January 16, 2014 at 9:55pm
Victoria: Isn’t she! 😉 January 17, 2014 at 8:26am
Ann: Oops. Meant to say that although the industry has traditionally been male-dominated, now that there is a critical mass of women perfumers it seems less than a coincidence that the value of their art is diminished under French law. (That sounded way more victim-whiny than I feel, but I stand by the logic.) It also seems less than coincidence that the perfumer in question for the particular legal case is a woman… and your friend’s point is even more interesting (the conspiracy paranoia!!!) that Sophia Grojsman is a naturalized American! January 16, 2014 at 10:01pm
Victoria: The case with Tresor was just that it was hugely successful, so it has lots of imitators. I don’t really know if gender has any role in this instance. The outcome would have been the same, had it been made by a man. January 17, 2014 at 8:28am
Anne of Green Gables: Thank you for the food for thought. This is a really complex issue and I don’t know enough about copyright law or perfume industry to make a right judgment but here’s what I think. First of all, I strongly believe that creation of perfume is a work of the mind like art or music so I would disagree with the French court regarding perfumers’ work as merely technical. New ideas are essential to creating original, commercially successful perfumes (well, not to say that original perfumes are always commercially successful) and therefore are worthy of protection. Now the problem is how this can be done in reality. I really have no idea.
I think some measures are needed to prevent people abusing the current lack of legal protection to gain profits from selling obvious ‘smell-alikes’ but I have my doubts on whether granting copyrights to perfumes will solve the problem of the current market which is oversaturated with near identical launches. The big fragrance companies themselves are copying bestsellers to avoid taking a risk and they shouldn’t use lack of legal protection as an excuse. Only when they treat their profession as work of art/intellect and start taking risks, we’ll have more original perfumes in the market.
In my opinion, the perfume industry is paying in some way for having kept their work secretive and mysterious. Because they kept perfumers in the shadow for a long time, the public doesn’t know how perfumes are created and how much creativity is needed in creating an original perfume. So perfumers are treated at best as artisans, not as artists.
I’m sorry if what I said doesn’t make any sense. It’s a complicated subject and I’m also very confused.
One question: Are only the captive molecules protected under patent? How about specific accords which are sold commercially? Are they protected in any way? January 16, 2014 at 12:32pm
Victoria: It makes perfect sense! I’m no legal expert either, so I hope that I didn’t confuse you further.
I can’t agree more with you that the lack of information provided by the industry is hurting it tremendously. As you say, many don’t really know how perfumes are created or how complex and creative the process is. And how can one know if the entrance to the lab has been guarded as close as the National Treasury! It’s changing, of course, and hope that more changes will occur further down the line. January 16, 2014 at 2:02pm
Anne of Green Gables: I’ve already said a lot but there’s something I’d like to add. With so many copycats in the market, there are consumers who are being deceived. I know that certain consumers will purchase cheaper imitations knowing they’re knockoffs but there will be also other consumers who don’t have any idea. If they knew what they were buying were knockoffs, some of them might not want to buy them.
I speak from my personal experience. During my first visit to England, I bought a bottle of perfume at M&S. This was before I knew anything about perfumes and it was my first perfume purchase. I think it was called ‘Energy’ or something and the juice was pink. I thought it was a unique and sophisticated perfume. I felt very grown up. I only recently realised that this must have been a copy of Gucci Rush. Had I known that it was a knockoff, I wouldn’t have bought it and now my sweet memory is ruined! January 16, 2014 at 4:30pm
Victoria: So true. I look at the market today, at some houses promising “exclusive,” “luxury” and “crafted with high-quality raw materials”, and what they offer instead is mass-produced junk at luxury prices. It makes me wonder if this kind of deception is another even worse. But of course, your example really points out why the brands facing counterfeit and plagiarism are so keen on getting some kind of protection. January 16, 2014 at 6:33pm
Victoria: P.S. I need to double check on accords, but I really don’t think that they are. The only thing is that the captive molecules are protected under the patent laws. January 16, 2014 at 2:03pm
Ashley Anstaett: Wow, this is such a fascinating concept. I’ve always assumed that fragrance formulas were protected under copyright, but now the aura of secrecy surrounding the perfume industry makes much more sense. At first, like you said, Victoria, I was just kind of offended to hear that perfumery described as purely technical. However, after thinking about it a bit more, and after reading all of the thoughtful comments of the other readers…my position is still confused, but confused in a better way.
I think that the perfumer should probably have the rights to their creation, out of respect for their work. However, the industry already doesn’t work that way, so the perfumers are sort of at a disadvantage. It makes me so sad that perfumers receive so little credit for the work that they do, and instead that credit is received mostly by the brand. Niche lines like Frederic Malle or A Lab On Fire that prominently feature and credit their perfumers makes a great deal of sense to me.
Which brings me to my next, very long-winded, point. At first I was indignant about perfume formulas not being copyrighted, but then I thought it probably will have little impact, or perhaps could even be a good kick in the pants, for some of the more talented, creative perfumers, and for the industry. If all of the major brands are seeking to simply create best-selling perfumes, let them. It’s a sad concept, but I think that’s also where beautiful lines like Editions de Parfums Frederic Malle and other niche fragrance lines have sprung from. Perhaps it will push the more talented noses to places like this where they can exercise their creative freedom and brands interested in simply creating “best sellers” can hire skilled technicians to copy other people’s formulas.
It makes me sad to think that the hard work of a gifted nose could be, in my eyes, essentially stolen, but perhaps it is not all bad. January 16, 2014 at 1:07pm
Victoria: I was also thinking of all the counterfeit goods that flourish despite the rules and regulations, although having means to enforce the IP protection already helps. And you’re right, there is always a way for the smart companies with a long-term vision to stand out. Serge Lutens, Annick Goutal, L’Artisan, especially in its early days, have done so much to create a new type of perfume and a new way to experience it.
In my own, very personal way, I feel strongly about the need to protect the authors, mostly because I have seen many blatant cases of plagiarism (not just with my own blog but also those of other blogs I follow). It’s frustrating that people can take someone’s work and try to make money off it or simply claim it as their own. January 16, 2014 at 2:14pm
Ashley Anstaett: Yes, it’s very off-putting and I’m surprised that creators aren’t protected. Is there anything saying that exact copies can’t be made or any protection for them other than secrecy? It just seems so unethical.
I’m so conflicted, because it almost seems that people will make copies no matter what rules and regulations are in place, but a big part of me just thinks that it’s only right to at least TRY and keep authors safe. There was a really crazy story about plagiarism recently involving Shia LaBeouf and comic writer and artist Daniel Clowes, and it is absolutely appalling:
http://www.avclub.com/article/shia-labeouf-plagiarizes-daniel-clowes-comic-for-h-106565
In case you’re interested! It’s crazy that it happens all of the time. Daniel Clowes has a good lawyer, I’m sure, but I am willing to bet that many bloggers don’t have so many people watching out for them or can’t afford that kind of assistance. January 16, 2014 at 2:26pm
Victoria: There are the so-called gentlemen’s agreements, and because the industry is small and everyone knows each other, it can prevent complete anarchy that one might expect under the circumstances. Some smaller companies do exist only because they do the copycat work. A brand can bring a sample to them and say “make the same thing but cheaper,” and they do. But in most cases, especially if we’re talking about a prestige brand, it can simply say to its supplier, “make it cheaper or I will go to your competitor.”
That case is unbelievable, but at least, the artist was vindicated. January 16, 2014 at 2:53pm
James: can’t understand people like that. did he expect that nobody would notice? January 16, 2014 at 6:56pm
Ashley Anstaett: James, it makes no sense. It’s a really horrible thing and people caught on very quickly. Apparently he didn’t provide any screenwriting credits, which to me is really suspicious. And he’s plagiarized before. It’s just shameful stupidity. January 16, 2014 at 7:28pm
minette: all romance and story aside, perfumes are chemical formulas. so are prescription drugs. one product is protected (at least for a few years after inception), so why is the other not?
too, we have subjective reactions to drugs as we do to perfumes. everyone’s body reacts differently to drugs (ever have a bad side-effect when your friend does fine on a drug?), so you could call our responses to them subjective. and yet… somehow having subjective responses to perfumes is different? makes no sense to me.
if the perfumers want protection, they need to find an argument that works.
also, why can’t art and science coexist? art finds the vision, science allows it to manifest in a form we can enjoy. January 16, 2014 at 5:02pm
Victoria: I like the pharmaceutical industry as an example, because it’s very similar. And another difference between the fragrance and pharmaceutical industries is the public education campaigns.
Maybe I got it wrong, but I thought that the prescription drugs are protected in the same ways as perfumes are today–the active ingredients are patented or the process of making them, rather than the list of ingredients themselves. January 16, 2014 at 6:38pm
Ashley Anstaett: So would that be a situation where like, the patent for Ambroxan is owned by Firmenich? Is that the right understanding of that particular situation? January 16, 2014 at 7:33pm
Ashley Anstaett: Or is it Ambrox? I don’t know, but I want to understand! January 16, 2014 at 7:35pm
Victoria: Ambrox is Firmenich’s trade name of Ambroxan. What’s patented is the process of making it, so presumably if another company figured out a different way, they could patent it too. January 17, 2014 at 8:20am
Ashley Anstaett: Oh cool, thanks! January 17, 2014 at 10:39am
minette: v, i don’t know the answer to your question. you may be right about it being the active ingredients and not the process – i mean, the process is how you cook it, and there are only so many ways to boil a syrup, or compound something or smoosh it into a pill.
it just seems to me that if perfumers are looking for a viable legal argument it might be a good place to look. chemicals to chemicals.
of course, there is an art to the drug industry as well – i mean, aspirin is aspirin, and it comes from nature, yet look at how bayer has taken over the brand awareness for it (at least here in the states). January 16, 2014 at 8:24pm
Victoria: Thank you, yes, it makes sense. I just meant that they already look to the chemical industry for precedents. It’s just that the same tools applicable to drugs don’t apply with equal success to fragrance. The active ingredient in some breakthrough drug is likely to comprise more of the formula than is the case for the captive molecule in a fragrance formula. And if someone wanted to copy a fragrance, all they do is take a small sample, read via the modern analytical equipment, get a printout, balance out the formula. Can’t get a captive? No problem, replace it something else. It’s a very simplistic view, of course, and it doesn’t work in all cases. But in many cases, that’s how the copycats operate and there is no way to stop them. January 17, 2014 at 8:25am
minette: this sucks. as an artistic soul, i would hate having my artistic vision swiped. January 17, 2014 at 2:30pm
Victoria: It’s frustrating to many creative people. Which is why the question of authorship and recognition among perfumers is always a touchy one. January 17, 2014 at 2:40pm
Anne of Green Gables: I don’t think you got it wrong. I think most of the time, it’s the active ingredients (usually single molecules) which are protected under patent laws, just like captive molecules in perfumery. I guess a specific process for synthesising the drug could also be patented. But once it gets to combinations of existing drugs (called fixed-dose combination), I think it becomes more difficult to get it patented unless you can prove that it’s not an obvious combination. Someone from pharmaceutical industry would know much more about it. January 17, 2014 at 5:18am
Victoria: Thank you for clarifying it further. I know that in the US getting a trademark or a patent is a very timeconsuming process, and in Europe it’s even more so. Especially for drugs! My husband was visiting one university colleague who had a room (!) devoted to nothing but documentation on a pending prescription drug patent. January 17, 2014 at 8:32am
minette: i forgot to add – the drug industry seems to do just fine at keeping its formulas secret – why can’t perfumers learn from it? January 16, 2014 at 5:06pm
Victoria: I suppose, most of the materials in the perfume formulas are not under patent and can be revealed by the basic analytical methods. This may not be the case with the prescription drugs. Again, I’m just guessing, so perhaps someone else who knows more can comment. January 16, 2014 at 6:40pm
maja: I can’t see how copyright can work when L’Oreal is suing some company that have copied Lancome’s Tresor created by Sophia Grojsman. That is too many people involved. And probably a different sentence would have changed things in worse because everybody would be suing everybody else. One thing is sure – I am truly sorry that perfumers, who are the real creators, do not get rights to their creations. At least on paper.
I don’t know how big the market of so called dupes is but I guess it must be profitable since big companies are after them. If companies lowered the costs of perfumes (and we have seen how little the juice in itself costs in the end) nobody would be buying replicas 🙂 However, this isn’t clearly only about dupes but also big companies launching identical things and being absolutely boring. Should serve as a lesson on greater creativity 🙂
Not sure either if perfume formulas can be compared to pharmaceutical ones since perfume is still considered vanity. Not by us, obviously. 😉 January 17, 2014 at 9:41am
Victoria: You’re exactly right. That’s a very possible scenario that the positive decision would have just meant more fights and competing legal claims. Can you imagine the pandemonium that would ensue! January 17, 2014 at 11:31am
Kirsten: I wonder if it comes down to our greater acuity with vision than with smells.
We can easily recognize the original painting of Starry Night vs. a printed poster vs. a photograph of the night sky. But our sense of smell is blunt and imprecise at best, so most of us would have trouble spotting the olfactory equivalents to the example above.
And so they call it “subjective” when it may be more like “eh, who can tell, really?” Maybe if dogs developed human-like intelligence, their copyright laws would protect a clearly identifiable work of fragrance and Starry Night would be, eh, just a picture of the sky, right?
Hah, I wonder if perfumers could receive more protections if they all had to truthfully write out their complete formula on the box or bottle. The words are copyrighted and it would be breaking the law to duplicate them. And maybe consumers would be able to spot the cheapness of the imitators more easily, too! January 17, 2014 at 1:32pm
Victoria: I think that you’re right, the court also saw that it was much harder to describe scents with the necessary precision. Plus, we actually smell different things in the same mixture. There were several studies on this not long ago. And this surely must complicate things further. January 17, 2014 at 2:42pm
Austenfan: After 3 days of intermittent thought on the subject, I have to admit I haven’t a single thing to add to this very interesting and thought provoking post. Thanks for providing the information and the challenge. January 20, 2014 at 9:03am
Victoria: Glad that you liked it! The topic seems very arcane, but the perfume lovers also feel its effects down the line. January 20, 2014 at 10:50am
odelnyul: Hi, I was wondering whether perfume ad pictures were copyrighted, I would love to use them to illustrate my blog. Thank you in advance for your reply. February 9, 2015 at 6:44pm
Dravasp Shroff: If I take an existing batch of homemade shower gels, incense sticks, body lotions, whipped body butter, oils that smell exactly to versace, chanel, boss, ck, etc… I would be faced with criminal charges after its approved as safe to use ? How can anyone register a trademark or patent based on the smell when the chemical composition is completely different? If I rebrand all these products and sell them in retail outlets, flea markets and other places online commercially how can any company file a lawsuit on that basis. My branding, labeling, packaging, design, everything including the containers stored under are all created fresh and clearly labelled adhering to FDA regulations and government associations such as NCIL!! It smells more or less like eliminating home based business or small time players by bigger corporations! I would really like to know in depth about this issue. February 9, 2016 at 9:17am