Moist Cavern Disputes – The Issue of Olfactory Copyright
The smell of damp earth, ripe fruit within a distinct musky aroma paired with herbal accords and a hint of leather – a bat in its habitat and the invocation of the furry winged animal in its entirety.[1] What hardly sounds appealing as a scent to wear on human skin marks the ascension of Bat by Ellen Covey for the Canadian fragrance brand Zoologist under the creative leadership of Victor Wong. Dr. Ellen Covey, a perfumer, researcher, and expert on bats created a scent centered on her experience of the caverns fruit bats inhabit. Victor Wong created a whole fragrance brand centered on tropical and wild animals, manifesting Extrait de Parfums on the olfactive likeness of creatures such as Elephant, Moth, Panda or even Tyrannosaurus Rex. This was in 2015. The year 2020 saw the release of Bat by the same brand with the same visual presentation but with a different “juice” inside the bottle. Bat (2020) was created by perfumer Prin Lomros. His expression of Bat featured the tropical and exotic interpretation of fruit bats, with hints of jasmine and moss in full flight. A nocturnal, cavernous dampness blooming lighter than the original.
As the creative director and perfumer of her own brand, Olympic Orchids, Covey released a perfume named Night Flyer in the same year.[2] The simple bottle design featuring a bat flying in front of a yellow moon proclaims “the original” in understated small print. This original is the same smell as the award winning Bat (2015),[3] the same juice released under a different name and brand while another “original” appears to co-exist – two olfactive experiences using a distinct critter as inspiration, the note of a moist cavern interpreted and sold as perfume in competition. While open to speculation, as the world of perfumery exists only through obscure and selective communication, Ellen Covey must have withdrawn her consent and formula for distribution from Zoologist and therefore the “husk” of Bat belonging to the brand became available to be filled with a new scent creation by a different perfumer. Covey, in turn, was able to take her perfume – the formula and distinct smell created by the combination of different synthetic (and maybe a few natural) olfactory ingredients – and sell it on her own accord with a new name and imagery attached, even when nudging at the idea of being in possession of the “original”.
Even if this very specific example of three different perfumes aiming for the same olfactive experience and imagery might simply be rendered an issue of product design and marketing, the idea of ownership pertaining to olfactive creations begs the question of how and if there exists copyright protection for smells and especially perfumes?
In the past, two groundbreaking court-cases came to different conclusions with implications worth discussing. The 2006 case by Lancôme Parfums et Beaute et Cie SNC v. Kefoca BV decided by the Supreme Court of the Netherlands was concerned with the claim made by the cosmetic company Lancôme that Kefoca sold a fragrance called Female Treasure which infringed on their popular fragrance named Trésor.[4] Lancôme was not only pointing at the proximity of a fragrance called Female Trésor competing with Trésor in the same market and exact same field of products, but tried to claim that Kefoca had forged and illegally duplicated the scent of Trésor. What might appear as a clean-cut imitation of a functional and profitable formula, in name and scent, proved a problem before the law: A claim of copyright of a perfume or composed functional scent was still novel in modern courts. The idea of copyrighting a scent seemed to stretch beyond declaring copyright for a piece of art or music where authorship, even of multiple collaborators was the norm. The historic case and example to consult would be the very first Eau de Cologne. Named after creator and perfumer Johann Maria Farina, Farina featured the iconic mixture of flowers, citrus and green notes as the fresh potpourri of eau de cologne, establishing the brand in 1709.[5] In the coming decades, many other creators of refreshing essences followed the idea and most prominently, the cologne 4711 came into existence through Wilhelm Mühlens in 1799. Various claims by Farina for the ownership and right to name his fragrance eau de cologne and protect the mixture as his own were declined and in today´s collective consciousness the competitor 4711 is recognized by many as the “real” Eau de Cologne.
In the court case concerning Trésor, the clerks decided that a scent could in principle be copyright protected, disallowing Kefoca the production and sale of a perfume that smelled of white roses and lily of the valley with iris, sandalwood and musk at its base – a scent description and idea Lancôme could prove to have developed before Kefoca. Yet, the scent itself was not smelled or put under any scrutiny. As the court in its first instance dismissed the claim that Female Treasure infringed on the copyright of Trésor by the usage of a similar name, the appeal by Lancôme included the infringement on the scent of the perfume as a part of the trademark constituting Trésor. In the final ruling, the courts held scent as a copyrightable component in its perceivability by a “sensor”, if it possessed an original character and featured the stamp of an author. The scent itself, however, was not considered as material substance. The chemical formula and substance making up Trésor was constructed as the non-fleeting material creating the scent. Lancôme was able to win their case in proving that their work on a scent profile “led to a very specific combination”, which in turn “made a distinctive and unique perfume” and was “instantly popular upon its introduction”.[6] If Female Treasure and Trésor had any olfactive resemblance at all, was ultimately not part of the question of copyright, much rather who or where an “inventive step” had taken place and in which combination the olfactory mark stood with the overall presentation and marketing of the scent.
In contrast to this process, a French court dealing with a similar case on the smell and recognizability of the scent Dune by Dior ruled directly against this assessment. Nejla X c. Soc. Haarmann & Reimer came to the conclusion that perfumery is not an artistic practice and is not derived from the merit of an inventive step, even calling into question the achievement of the perfumers themselves. A ruling from a court situated in a country thought to be the heart of the perfume world held that perfume-making was merely the application of know-how. A craftsmanship not far from the act of making a chair, which most would understand as an act of designing before it was the composition and adjustment of material to form a seating opportunity. Both rulings call into question the very idea of copyright and why certain acts of labor are not considered protectable as creative and unique forming of materials to express ideas and concepts. By way of thinking of what is eligible for copyright, we can tap into the question of how a sensory hierarchy exists even within ideas of artistic practice and its legal consideration, turning towards the specific position perfume and smells hold.
In its current form, copyright relies on the definition on granting works of creative and innovative nature protection, pertaining to the legal and financial handling of authorship and compensation. A work that can be copyright protected must, in most cases and in most countries, comply by possessing an original character of personal and intellectual creation following a creative development aiming at the constitution of something unique and new in its inception. Here the authors personal mark or “stamp” must be just as perceivable as the work at hand – an idea or concept itself cannot be protected, only its material manifestation. In this definition, ideas such as the uniqueness of the work and its recognizability by way of popularity, but by its sensuous formation as well are crucial. A painting or piece of music can be copyright protected, if it can be seen or heard and exists in a form that goes beyond a concept or unwritten idea. In the case of Trésor and by the Netherlands’ Supreme Court ruling in favor of the eligibility of a scent to be protected by copyright, the disconnect of substance and scent makes clear why these legal definitions begin to fail with olfactive iterations.
The courts did not rule on the smell of the perfume and only considered the substances as the materials that created the smell – not the smell itself. The smell of a scent or a product is held to fail its instant and unmistakable perceivability in contrast to say maybe a melody or visual representation. In other words, those rulings on scents admitting that lack of understanding and distinction prevents scents from being protected as creative outlets of expression. Apart from concerns of subjectivity and judgement, the court in the Netherlands might have taken a step towards disjointing substance and smell in a move that recognized that chemical components and their scents do not necessarily match. A substance creating the smell of minty citrus can have multiple chemical sources, the chemicals themselves can smell different by their binding and most importantly, a scent can change its smell in the atmosphere, the heat or humidity it is presented in. Even if this is a far-sighted decision in recognition of the multimodal qualities of chemical substances and smells, the scents created are still open to be copied and sold without any recognition of authorship or creative invention involved.
Additionally, the assertion of perfume as “simple” craftsmanship complicates the standing of scented creation even further. The ruling of a French court against the protection of a scent lends to the denigration of creating a perfume qualifying “merely” as a technical process not resulting in anything that could be viewed under the appreciate lens of visual art, film or music. The idealist dream of an artist laboring in seclusion and singularity becomes upended by a capitalist industry itself, especially considering the fragrance industry in particular. The idea of one perfumer developing, mixing and bottling a perfume and ultimately selling it by themselves is as far a vision as a piece of contemporary music being created without the collaborative effort of recording studies, engineers, mastering and a marketing apparatus. In the case of Bat, we might have the rare case of a perfumer working on a perfume without the input of a huge marketing division, fragrance consultants or testing, just Victor Wong as the sole entrepreneur of Zoologist. Authorship might be a given, but in a collaborative and transgressive manner, with inspirations, chemical substances and a shared vision resulting in an experience to be worn on skin and to collide with the singular atmospheres of their wearers.[7] Ellen Covey will have culturally created the association of damp earth, fruit and leather with a bat, and carry this “inventive step” into the history that is occupied by Farina creating the eau de cologne or Chanel No.5´s distinct usage of Aldehydes by Ernest Beaux. Yet, what does this mean if the command over and protection of these inventions is compromised by a lack of legal protection and recognition?
The olfactive implications of this lack of protection resonate into the value of this specific aesthetic labor and how smell and the scent of things is undervalued in the hierarchy of the common five senses.[8] Against practices such as composing music or designing products, furniture or even technologies, working with scents experiences the sheer disregard of a unique character and perceptible quality of creativity, lessening it compared to other concretely sensory experiences. Here we can find a rational and sensory bias against the most ephemeral of senses, even though perfumery is recognized as an intentional act and expression of ideas. The solutions for this are manifold. As the trademarking of scents as parts of overall appearances of products, such as Play Doh or a store for sporting goods is becoming more relevant,[9] perfume could be copyrighted by using a multi-pronged approach situated on the material substance and smell alike. The textual and technical descriptions of the creation process and product could be copyrighted while using the chemical structure formulas in conjunction with gas-chromatographic and olfactometer spectrograms and the deposition of a sample to secure the legal claim for a scent and its olfactive experience.[10] In the case of Bat, Ellen Covey could have used the description and note-breakdown in top, heart and base note with the claim of using geosmin as the main substance of the “moist cavern” note in conjunction with the other chemical components for the development of a unique perfume. While this approach still lacks the direct experience of smelling the perfume, it could serve as the most stringent manifestation of the scent, still readily available to compared and smelled against other perfumes and for any infringement to be established.
The process of granting copyright to scents as perfume might open up different sets of problems – such as the question of how and if licensing must be discussed in wearing a perfume.[11] Yet, the lack of protection under the law is a glaring grievance for the fragrance industry, especially for perfumers trying to gain recognition and security in this form. Here we can evoke the notion of sensuous governance as proposed by Sheryl Hamilton and assess the way in which the law structures our senses and how this reframes itself in the cultural and political understanding of the senses and sensory experience itself.[12] As perfumes and perfumers push ideas of artistic practice, authorship and even the very notion of “artwork” to its limit, building a legal basis will serve as an important step of recognition and attention toward our olfactory life-world and its values – a step mostly required from the consumers of this aesthetic labor, not the producers of scents.[13]
Bibliography:
Juraschek-Eckstein, Markus (2016), Farina 1709 – Die älteste Parfümmarke der Welt. In: Hegel, Marin & Wagner, Matthias K (eds), Für den tieferen Sinn – Duft als Medien in Kunst, Design und Kommunikation. Frankfurt am Main: Spielbein Publishers. p. 78-89.
Leppink, Willem & Veltman, Michel (2006), Netherlands Court Grant Copyright Protection to Perfume Scent. In: Journal of Intellectual Property Law & Practice, Vol.1, No.12. p. 756-758.
Howes, David & Classen, Constance (2014), Ways of Sensing – Understanding the Senses in Society. London & New York: Routledge.
Elliott, Charlene (2020), From Fun to Fraught: Marketing to Kids and Regulating “Risky Foods” in Canada. In: The Senses and Society, 15:1, p. 41-53.
Hamilton, Sheryl N. (2020), Introduction: Sensuous Governance. In: The Senses and Society, 15:1, p. 1-8.
Teil, Geneviève (2019), Learning to Smell: On the Shifting Modalities of Experience. In: The Senses and Society, 14:3, p. 330-345.
Böhme, Gernot (2001), Aisthetik – Vorlesungen über Ästhetik als allgemeine Wahrnehmungslehre. München: Fink.
Rengshausen, Sebastian (2015), Possibilities for the Protection of Scents and Fragrances. In: Museum Tinguely, Basel (eds.) (2015), Belle Haleine –The Scent of Art. Heidelberg & Berlin: Kehrer. p. 47-57.
[1] For a description of the, albeit, new Bat see: https://zoologistperfumes.ca/collections/deluxe-bottles/products/zoologist-bat-deluxe-bottle [Retrieved 28.04.2021]. For a description of Ellen Covey´s Bat see. https://www.parfumo.net/Perfumes/Zoologist/Bat [Retrieved 28.04.2021].
[2] https://orchidscents.com/?product=night-flyer-the-original [Retrieved 28.04.2021].
[3] Bat (2015) won the Art and Olfaction Award in the Independent category in 2016: http://www.artandolfactionawards.org/archive/2016-winners-and-finalists/ [Retrieved 28.04.2021]
[4] For the breakdown of the case, see Leppink and Veltmann (2006).
[5] Cf. Jurashek-Eckstein 2016, p. 78.
[6] Cf. Leppink & Veltman 2006, p. 757.
[7] See for example the assessment by Howes and Classen that products “endow its users with sense appeal” (2014, p. 142).
[8] For the definition of aesthetic labor see Böhme (2001, p. 53).
[9] For example, this process is process is described as “sensory engineering” by Howes. For the trademarking of Play Doh’s scent see: https://www.washingtonpost.com/news/business/wp/2018/05/24/remember-how-play-doh-smells-u-s-trademark-officials-get-it [Retrieved 28.04.2021].
[10] This proposition is made by Rengshausen (2015).
[11] A question to be posed in the wearing of perfume, would be to ask if this is an active propagation or transformation of a scent, see Howes and Classen “consumption is an active process” (2014, p. 150). See also: https://www.wipo.int/wipo_magazine/en/2006/05/article_0001.html [Received: 28.04.2021].
[12] “Sensuous governance assumes that sensory perceptions interact and co-constitute each other in complex ways, what Howes calls “intersensoriality”. We never experience our senses in isolation from each other and further, the senses are not simply biological or primarily personal, but fundamentally cultural. As a result, the sensory realm is pervaded by power relations: “[t]he senses are gateways of knowledge [and] instruments of power” (Hamilton 2020, p. 2).
[13] In comparison of Elliot (2020, p. 44) calling for the reinvention of consumers as “food citizens” in lieu of the marketing and consumption of food item, I would call for the invention of the scent citizen. This can be seen in conjunction with Teil (2019) and her description of how the faculty of olfaction needs to be trained and made aware of to better an understanding of smell.