Relections on "A Fracas about Fragrance: Copyright’s Application to Perfume"
On October 14, PIJIP and IPLS hosted a lunch with Charles Cronin, a 1985 WCL graduate, and he gave a talk on whether copyright should apply to manufactured fragrances. There was one case in the French courts claiming that a manufactured fragrance is not copyrightable because it is a technical creation. Lately though, the trend in France and The Netherlands seems to be that manufactured perfumes are copyrightable to their creators. One line of reasoning is that although people may describe a scent in different ways, it can be analogized to people describing music in different ways. Another is that when a perfume is created, there is an embodiment of the imprint of the personality of the creator, and it is perceptible and identifiable to the author.
Mr. Cronin’s argument is that manufactured perfumes should not be copyrightable, and that human senses should play a role. Although the creation of a perfume involves the application of an artful skill, perception of the scent does not. Scents can be analogized to colors; the scope of both is impossible to describe, and courts will not be able to determine the line of what is infringement.
I agree that perfumes should not be copyrightable, but I think that other intellectual property protections should apply. The formula for a fragrance can be protected as a trade secret, and trademark law should apply to the naming and packaging of the perfume.