By Julia Gaffney*
Could you describe, in words, the smell of fresh-baked bread? How about a complex smell, like a cabin in the woods? How would you distinguish the smell of rosemary from roses? It can be surprising how hard it is to describe a smell through language. Many people have never practiced the skill of translating olfactory stimulation into language, and might describe a scent through associative memories instead of describing the scent itself. This difficulty, among other reasons, contributes to scents often being absent from social discourse, as well as legal discourse.
Recently, new technological developments have prompted renewed interest in legal protection of scents through intellectual property laws. At the same time, however, artists have been undertaking new experimentation with scent-based artworks, known as “olfactory art.” These artworks challenge our olfactory senses, encouraging us to re-engage our sense of smell or connect it with other modes of perception such spatial perception. As lawmakers consider extending legal protections to scents, such discussions might consider expressive interests as well and strike a balance between allowing room for artistic experimentation and protecting intellectual property rights.
The pursuit of protection for scents is nothing new; stories abound about formulas being passed on through families with great secrecy.[i] Where in the past individual perfumers worked for the same perfume house for their entire careers, now employment is more itinerant and flexible, increasing businesses’ precautions around protecting proprietary scent formulas.[ii] Simultaneously, recent technology has enabled inexpensive and widely available analysis of scents’ chemical compositions, making it significantly easier to create knock-offs and providing a more stable way for scents to be memorialized.[iii]
Yet despite the perfume industry’s strong interest in protections, commercial scents have historically operated outside the bounds of legal intellectual property protections such as copyright, trademark, or patent law. In the U.S., whether perfumes can be copyrighted has not been conclusively addressed.[iv] Fragrances are typically denied trademark protection, though the Patent and Trademark Office recently granted a rare trademark for Play-Doh’s signature scent.[v] Patents are rarely sought, due among other reasons to public disclosure requirements.[vi] Some scents, though, may be protected as part of a larger multisensory experience, such as a branded store environment.[vii]
Independent artists have nuanced relationships to intellectual property protections. While most artists do not want their work to be ripped off, overly broad legal protection for scents could cause confusion and apprehension, discouraging free experimentation with scent through olfactory art.
An olfactory artwork is a work that goes beyond simply being a scent.[viii] Such artworks might challenge our sensory perception, and certainly challenge the predominant conception of artworks as exclusively visual. For example, Maki Ueda’s Olfactory Labyrinth (2013) joins olfactory and spatial perception in a novel way within the gallery space by providing an olfactory maze for visitors to trace their way through based on smell.[ix]
Peter de Cupere’s Sweat (2010) is a distillation of dancers’ sweat after a performance, later provided for visitors to smell on the dance company’s wall.[x] Artists such as Koo Jeong A and Lisa Kirk harness scents to trigger sensory recollection or to evoke an emotional or psychological response in the visitor.[xi] Smell Memory Kit, by Sissel Tolaas in cooperation with Supersense (2015), enables the proactive formation of smell-memory connections, providing three ampules of an abstract scent to enable later recollection of a chosen moment by smelling the same scent.[xii]
Some individuals have started to consider alternative methods to share such knowledge instead of protecting it. Saskia Wilson-Brown at the Institute for Art and Olfaction in Los Angeles, for example, advocates for artists and perfumers to share knowledge in exploring and creating scents by harnessing existing legal structures such as creative commons or copyleft, two alternative distribution methods using the scaffolding of copyright.
Practical considerations also support striking a balance between expanding legal protection and reserving some room for creative experimentation. Imagine an artist who would like to produce a scent to trigger a fearful emotional response in visitors to an installation, but who must avoid a number of protected scents. Practically, how could the artist avoid infringement except by comparing each scent through chemical analysis?[xiii] If a scent that produces the desired effect is copyrighted or otherwise legally protected, how can the artist reconcile their intended work?
Future legal challenges on scents will likely come from perfumers and companies with scented commercial products. As the legal discourse evolves, lawmakers may consider the many ways that scents are being investigated beyond their use in commercial perfumery; here, the law has the chance to grow alongside artists’ creative experimentation.
The author thanks Aleesa Cohene for her guidance on the world of olfactory art.
Disclaimer: This article is intended for general information only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advice. Opinions expressed are those of the author.
About the Author: Julia Gaffney is a third-year law student at University of California, Irvine School of Law. Prior to her legal education, Julia was an archivist for contemporary artists and designers. She can be reached at firstname.lastname@example.org.
[i] See, e.g., Annick Le Guérer, History of Fragrance, Société Française des Parfumeurs (trans. Mary-Claire King, 2013), http://www.parfumeurs-createurs.org/gene/main.php?base=473 (describing the familial lineage of the rose and snail cream sold by Jean-François Houbigant in the eighteenth century).
[ii] See Charles Cronin, Lost and Found: Intellectual Property of the Fragrance Industry; from Trade Secret to Trade Dress, 5 NYU J. Intell. Prop. & Ent. L. 256, 268 (2015) [hereinafter Lost and Found].
[iii] See Lost & Found, supra note 2, at 270 (discussing the impact of gas chromatography-Mass Spectromety technology on the perfume industry). For a discussion of sui generis copyright protection and fixation for perfumes, see Olivia Su, Odor in the Courts! Extending Copyright Protection to Perfumes May Not Be So Nonscentsical, 23 S. Cal. Interdisc. L.J. 663 (2014).
[iv] See Lost & Found, supra note 2, at 283; Leon Calleja, Why Copyright Law Lacks Taste and Scents, 21 J. Intell. Prop. L. 1, 3 (2013). Scents are not included in the eight favored categories of works of authorship, which comprise largely visual and auditory works. See 17 U.S.C. § 102(a); see also Christopher Buccafusco, Making Sense of Intellectual Property Law, 97 Cornell L. Rev. 501, 506 (2012) (noting that our sense of smell has historically been considered among the “low” senses of the body, rather than the “high” intellectual senses of vision and hearing).
[v] U.S. Patent No. 5,467,089 (issued May 15, 2018) (“The mark is a scent of a sweet, slightly musky, vanilla fragrance, with slight overtones of cherry, combined with the smell of a salted, wheat-based dough.”); see also Lost & Found, supra note 2, at 283-90 (discussing the expanding scope of trademark protection for non-traditional marks).
[vi]See Lost & Found, supra note 2, at 273-75.
[vii] See Ellii Cho, Copyright or Trade Dress? Toward IP Protection of Multisensory Effect Designs for Immersive Virtual Environments, 33 Cardozo Arts & Ent. L.J. 801, 823 (2015).
[viii] See generally Larry Shiner, Art Scents: Perfume, Design and Olfactory Art, 55 British J. Aesthetics (July 2015) (discussing the distinctions between olfactory art and perfume, and examining olfactory artworks as art through aesthetics); Catherine Haley Epstein, Primal Art: Notes on the Medium of Scent, Temporary Art Review (Sept. 30, 2016), http://temporaryartreview.com/primal-art-notes-on-the-medium-of-scent.
[ix] See Olfactory Labyrinth Ver.1.1, Maki Ueda, http://www.ueda.nl/index.php?option=com_content&view=category&id=292&Itemid=837&lang=en (last visited Sept. 16, 2018).
[x] See Sweat, Peter de Cupere, http://www.peterdecupere.net/index.php?option=com_content&view=article&id=94:sweat&catid=20:news&Itemid=53 (last visited Sept. 16, 2018).
[xi] See Barbara Pollack, Scents & Sensibility, ARTnews (Mar. 1, 2011), http://www.artnews.com/2011/03/01/scents-sensibility (discussing Koo Jeong A’s installation Before the Rain, 2011, and Lisa Kirk’s Revolution perfume and installation, 2008); Jodi Bartle, Seoul-o Artist: The Strange Insular World of Korean Artist Koo Jeong A, i-D Magazine (May 6, 2017), https://thefifthsense.i-d.co/en_gb/article/seoul-o-artist-the-strange-insular-world-of-korean-artist-koo-jeong-a (interview with Koo Jeong A).
[xiii] Accord Franco Galbo, Making Sense of the Nonsensical: A Look at Scent Trademarks and Their Complexities, IPWatchdog (Dec. 21, 2017), https://www.ipwatchdog.com/2017/12/21/scent-trademarks-complexities/id=91071 (discussing difficulties in potential prosecution of trademark infringement).