Copyrights for Perfumes?
I have just discovered Counterfeit Chic, a great blog by Susan Scafidi, the author of the book Who Owns Culture?, which argues for greater IP protection of cultural products. (The discovery came via my friend Jessica Silbey of the LawCulture blog, who just posted some very interesting thoughts on Scafidi’s book).
One of Scafidi’s recent posts caught my eye — or, perhaps, my nostril. Apparently recent court decisions in France and the Netherlands have extended copyright protection to the formulation of perfumes. My initial reaction was: that stinks. In an environment with so much tendency toward excessive protection, the very idea of extending copyright to whole new classes of works makes me wrinkle my nose in distaste (okay, I’ll stop now).
After a little reflection, I am not quite so sure. Scafidi (and Silbey) both anticipate this obvious reaction, and they both point out a few things. One of the most thought-provoking is the observation that the areas they see as potentially under-protected are often those oriented toward or perpetuated by women: fashion, cooking, folklore. The gender-bound aspects of information law are becoming a subject of greater discussion in the legal academy, including, for example, the work of Ann Bartow. It is an area worthy of a great deal more reflection.
Nonetheless, I am still inclined to think that perfumes should enjoy patent protection when they qualify (as is already the case under US law), and never copyright protection. One pragmatic reason is the much longer term of copyright — even if perfumes should be protected, can we really justify a monopoly of 95 years? More generally, copyright for perfume formulae or recipes or other sorts of essentially functional processes will further blur the lines between patent and copyright. I prefer to see the limitations of section 102(b) interpreted broadly:
In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
Note, however, that, notwithstanding similar objections, computer programs and architectural works do enjoy copyright protection (possibly more evidence for the theory that male-oriented works fare better in this analysis?).
In any event, the issue is not as simple as my first reaction assumed. Scafidi is definitely presenting some fascinating ideas that require more consideration. And her blog is fun.
Filed under: Blogging, Copyright, Patents, Scholarship
This issue seems to pop up every now and then and is always good for amusement, if nothing else. I actually came down the other way from you the only time I ever thought about the issue. Here’s what I wrote then:
Arguments can obviously be made in both directions here. Perhaps what they really demonstrate is that scent, taste, and so forth make a poor fit in the general framework of intellectual property; they’re neither fish nor fowl, so to speak.
I’ve always thought that scents should be in the domain of trademark law. If you can get your scent well known enough to be recognizable on smell, why should it differ from color, word-mark, etc.?
After all, great advertising for a perfume is smelling good, either on a person or at the point of sale.
Michael, I think you could potentially get trademark protection for a scent if it was identified with your product — a form of trade dress. It gets complicated, though, when the smell *is* the product. You run into functionality problems, and even the Supreme Court’s Bonito Boats decision (invalidating a state statute giving trademark-like unfair competition protection to certain boat hull designs that were not patentable).
Tim, I agree you would have trouble coming up with a nonobvious smell — but a novel formula for deriving a particular scent in a reliable way that can be produced on a large scale might well merit a patent (just as it would if it were the process for making a certain widget).
This whole discussion indeed suggests, as you say, that certain phenomena — like scents — fit poorly in the IP framework and are “neither fish nor fowl.” If so, however, that may well support Scafidi’s argument: this whole framework is oriented toward protecting certain types of things (in part, I take it that she would say, male-oriented things) and not others. The law conceives of some as more valuable and worthy of protection. But then maybe those evaluations, and thus the framework itself, are flawed…
I agree about the functionality issues. I suppose it depends on how you define the function. There’s no reason why insulation must be pink – it must have some color. Similarly, if the purpose of perfume is to have some scent, is it really functional that the maker decided on a particular scent? Locking up that scent does not lock up the market for perfumes, or limit it in any way, really.
I think it would make an interesting law review article to see just how well scents fit into the Bonito Boats framework.
[...] The New York Times ran a story yesterday [reg/$$$ req’d] about intellectual property protection for perfumes, a subject on which I posted last week. There is already interesting comment on the story from both Frank Pasquale at Madisonian.net and Susan Scafidi at Counterfeit Chic. [...]