Smells Like a Lawsuit

French courts have issued contradictory rulings on the question of whether perfume is a legally protected "work of the mind." Although one court denied a former Dior "nose" royalties for a perfume she helped create, another has ordered Bellure to pay L'Oreal $2 million in damages for copies of the latter company's scents and to destroy its stock of "counterfeit" perfume. The U.S. market, by contrast, abounds with knockoffs of popular scents, whose original producers have to rely on trade secrets and brand cachet rather than lawsuits to fend off smell-alike competitors. I've never been a big fan of perfume, but I suppose a memorable, complex scent can be viewed as a work of art, in the same sense that great dishes by fine chefs are works of art. But the latter too are legally unprotected (even in France, as far as I know). Any restaurant can try to replicate a competitor's signature dish without fear of a lawsuit, and I'm not sure why perfume should be treated differently. Then again, I'm not sure why music, movies, or writing merit special protection, unless it's based simply on a utilitarian calculation of which intellectual property rules will maximize creativity--a calculation that judges and legislators may not be well positioned to perform.

Comments

[Jeff P.]

A cup of dark coffee (no sugar) and a good-sized blueberry muffin give me particularly pungent and vile farts. It only works with that combination. Anything else added to the mix takes away from the overall offensiveness of the expulsion.

By L'Oreal's logic, I can copyright my own farts.

[Stevo Darkly]

I like black coffee and blueberry muffins, so I'll be producing a cheap knockoff of J'effarte(TM) possibly as early as tomorrow morning.

[Larry Edelstein]

Jeff P and Stevo Darkly's fart wars threaten to further the consolidation of the olfactory media. Congress must act now to preserve diversity of fragrance in the nation's body.

[TF]

Jeff P., don't forget that by Sony's logic, you can copyright the sound that they make too. Imagine the royalties.

[Jeff P.]

I will be including sample scratch 'N' sniff cards of J'effarte in Reason next month.

Does this make me a Fartist?

Stay tuned for Jennifer's new blog Dutch Oven Follies premiering soon.

[ed]

I'm not sure why music, movies, or writing merit special protection, unless it's based simply on a utilitarian calculation of which intellectual property rules will maximize creativity

Hate to break up the fart-fest, but "maximizing creativity" has nothing to do with copyright protection, from my point of view. My music is mine simply because I created it. The compositions are no better or worse or more numerous or more successful because they're protected. They're protected because they're mine. Simple concept, unless you're a modern libertarian. (wink)

[Warren]

Another Reason volly a the intelectual property fortress. That gives me a warm fuzzy.

[Evan!]

"My music is mine simply because I created it. The compositions are no better or worse or more numerous or more successful because they're protected. They're protected because they're mine. Simple concept, unless you're a modern libertarian"

You don't have to be a "modern libertarian" to realize that copyright protection is anything BUT "simple". While I'll agree that "maximizing creativity" is not a legitimate role of the State, I wonder: let's say a chef creates a dish. Pork Chops with Fried Onions and Dill Butter. Should nobody else in the entire country be allowed to make "Pork Chops with Fried Onions and Dill Butter"? Does that REALLY make sense to you?

Simple? Har har.

[Jeff P.]

L'Oreal might be acting pre-emtively, as the technology to record smells will soon be with us.
http://www.newscientisttech.com/article/mg19125586.300-device-records-smells-to-play-back-later.html

ed: You're right, but that doesn't stop me (or the record label currently gripping my rights in their evil clutch) from purposing endeavoring to sound as much like you as I possibly can, up to and including the point where a casual listen might mistake my work for yours. This has been the Big Label MO for decades.

[Russ 2000]

I can copyright my own farts.

That's not a work of the mind. It's a work of the colon.

[Russ 2000]

But personally, I prefer my farts to be in the public domain. Take my farts, please.

[NoStar]

Re: Jeff P and Stevo's fart war.

Until we get the film at eleven, I thought this might tide us over.

http://www.nearlygood.com/video/dualingfarts.html

[Too Loose Le Tract]

Please! I am a fartiste! I cannot work under zese outrageous condizions!

[Jeff P.]

Too Loose: I demand SILENZ for my flatulaaaance to be heard! Zeez acoustics are TERRIBLE!

I regularly make my farts public domain, whether the public is interested or not.
I like to let one go in a crowded elevator and call it an "installation."

[bigbigslacker]

Using the logic of the recent Microsoft decision, shouldn't major-brand perfume makers be required to reveal their secrets in the interest of leveling the playing field for the competition?

[Jeff P.]

Slacker: The complex smell must be broken down to a number of smaller component smells. Your scent can evoke orange blossom or rainwater, but not both.
The scents cannot be worn concurrently.

[Tom]

Using the logic of the recent Microsoft decision, shouldn't major-brand perfume makers be required to reveal their secrets in the interest of leveling the playing field for the competition?

Ignoring the part about leveraging a monopoly in one market to gain advantage in another, yes. In other words, no.

[CTD]

The difference is obvious - you can't eat your cake and still have it. Same for gilded whale vomit.

[Dan T.]

I would think that since drug companies can patent the chemical makeup of their medicines, I don't see why a perfume company can't patent the chemical makeup of their perfumes.

[zeroentitlement]

Then again, I'm not sure why music, movies, or writing merit special protection,

No? So you won't mind then, Jacob Sullum, if I start my own paid-subscription-only blog featuring all your articles passed off as my own?

I guess I'm an old-fashioned libertarian, because I believe a good artist deserves to get paid, and the law should condemn the theft of his/her profitable original ideas the way it condemns theft of tangible property. Even Jeff and his farts, if they're chemically unique, deserve the protection of the law. After all, he worked hard to make them, with just the right nuance of straight coffee, and ratio of blueberries to baked dough.

BTW, the lack of legal protection on chef's recipes is coming to an end. See the WSJ Weekend Pursuits section sometime around the beginning of last month. Patents on recipes are mounting.

[Clean Hands]

Oh, shit - that woman who done dirt to Neiman-Marcus over their chocolate-chip cookie recipe had better watch out!

[Lurksville]

I want to start a new peer-to-peer smell-sharing network called Fartster.

Emanation wants to be free!

[Phileleutherus Lipsiensis]

French courts have issued contradictory rulings on the question of whether perfume is a legally protected "work of the mind."

Since the concept of honoring past precedent doesn't formally exist within the French court system it will be interesting to see how this pans out. Of course if I RTFA I'd at least know which court made what decision.

[kevrob]

My music is mine simply because I created it. The compositions are no better or worse or more numerous or more successful because they're protected. They're protected because they're mine. Simple concept, unless you're a modern libertarian. -ed

I agree with ed that this is what ought to be, but it certainly isn't the theory enshrined in the Constitution's copyright clause, or in the earlier Statute of Anne in the UK.

Kevin