vendredi 28 octobre 2011

Can perfumes be legally protected? Debate at the Société Française des Parfumeurs

When you speak to “civilians” about perfume, they are usually astonished to find out that formulas aren’t protected by law and can therefore be unrestrainedly copied, twisted and otherwise modified without the assent of their authors.
Of course, knock-offs have always existed: before the widespread use of technologies like gas chromatography, mass spectrometry and headspace analysis, perfumers reproduced the competition’s stuff “by nose” (it is still part of their apprenticeship). The advent of the aforementioned technology has just made the copycats' task easier.

So how can the perfume industry protect itself from copycats and counterfeiters? How can it legally protect perfume formulas? And what impact could legal protection have on the industry, when many products are “twists” (i.e. reproduction of a formula with some of the notes changed) or “remixes” (accords plucked from different products)? When does “inspiration” stop and copying start?

The debate organised on October 20th by the Société Française des Parfumeurs was an attempt to lay those problems flat. Interestingly, attendance was untypically sparse for an SFP conference. No representative of a major player was willing to participate in the panel; the perfumers in attendance, at least those I recognized, were all either retired or independents like Osmothèque president Patricia de Nicolaï. The panel, chaired by the industry journalist Sabine Chabbert, was composed of Maître Emmanuelle Hoffman (a lawyer specialized in intellectual property), Frédéric Beaulieu (owner of Millenium Fragrances and administrator of the Syndicat Français de la Parfumerie), Bernard Marionnaud (founder of the eponymous chain of perfumeries and consultant of the French Prime Minister on matters of perfume counterfeiting), Jacques Vaillant (ISIPCA teacher) and Pierre Nuyens (perfumer and board member of the SFP).

Maître Hoffman told us about the different protection mechanisms in French law:
1)      The patent covers inventions with industrial applications, but it is publicly accessible and expires after 20 years. For these two reasons it is not applicable to perfume formulas, especially since many fragrances are produced for more than two decades.
2)      Trademark protection covers visual material and excludes chemical formulas, verbal descriptions and deposit of samples. So: no good.
3)      Copyright protection seems to be the only solution, since the list of eligible works, though it does not include perfume, is non-comprehensive and includes the wonderful little adverb notamment, “notably”, which means that although it does not mention works perceptible by the sense of smell, it does not explicitly exclude them.

However, as I remarked in another post, the French Cour de cassation (final court of appeals) ruled in 2006 that perfume formulas were “simple implementations of know-how” and could not be considered as oeuvres de l’esprit, “creative work” characterized by its originality.
Maître Hoffman did underline that this judgment had been disputed in several instances by juges du fond (judges ruling on the merits of a case), most recently on December 10th 2010 by the court of appeal of Aix-en-Provence, who found that “works perceptible by the sense of smell” could not on principle be excluded from protection under copyright laws.

This, of course, raises many vexing issues which were discussed during the Q/A session. For instance:
 If Chanel decides to put out N°5 Eau Première, must it first apply for authorization to Ernest Beaux’s estate, since an author or his estate have moral rights to N°5?
Who would detain the copyright if a perfume were a collective work, for instance when a perfumer, creative director and designer were all involved in the conception? Should the copyright be owned by the brand?
What happens when a client-brand “repatriates” a product whose formula was conceived by a composition house, even if it introduces small variations?
What of reformulations imposed by changes in regulations or raw material availability?
And finally, how are the limits established between a product that was “inspired” by a previous one, a perfectly legitimate practise, and a copy? What are the criteria – two accords? Three?

Neither the big labs nor their client brands really want to go there, as strictly applying such a copyright law would probably empty three-quarter of the aisles: it is unimaginable, in the present state of the industry, for companies to start suing each other unless the copy is absolutely flagrant, as it was in the case opposing Thierry Mugler to Molinard, which had turned its Nirmala into a copy of Angel, and Clarins, owner of the Mugler license, could argue for unfair competition.
It’ll probably be a long time before perfume formulas enjoy some sort of legal protection, and the effort will involve strenuous lobbying at the French and European levels. What seems like a basic right in the case of musicians, painters or writers, and would protect perfumers’ brainchildren as well as ensure their children’s futures (should their perfume prove successful), is a long way off. The legal apparatus will probably be conceived first and foremost to protect brands from counterfeit products (fakes perfumes represent 10% of the counterfeit market), which represents a huge economic loss but also also a potential sanitary risk.

The meeting concluded with a unanimously voted motion proposed by SFP chairman Patrick Saint-Yves to set up a new panel to discuss the copyright issue more specifically. One hopes that the major players of the industry will take up the challenge of discussing this awkward issue.

16 commentaires:

  1. Copyright laws are always playing catch-up. They are many complex issues and I can see why the SFP voted for a specific panel to work offline.

    In the publishing world, the old copyright laws are continually being challenged by the e-book industry. It's a mess.

    I would hate to work on such a thing... best left to lawyers. Unfortunately, the legal people will need perfumers to help them figure it all out and there is so much copying go on, I can see why the perfume companies would much prefer that the whole mess remain vague.

    Thanks for writing this, Denyse. I got asked a question in a lecture recently about les "droits d'auteur" and I wasn't sure what to answer.

  2. Normand, several lawyers were in attendance, but as you point out, this type of work is impossible to undertake without perfumers.
    It is indeed a deeply complex matter, which is why I wanted to post this to at least set out a number of remarks and questions.

  3. It's an extremely important issue... great post! Maybe they could get some help from the music industry which is the rip-off discipline of all-time. You CAN copyright a melody and lyrics but you CANNOT protect chord changes... so musicians take chord changes and simply change a couple of notes. What a hornet's nest.

  4. Under American law, most perfumes would be considered as "works for hire" and the copyright would belong to the company which commissioned the perfume, which might assign it to the company which markets it. Therefore, if the goal of the law is protect the original noses, and their heirs, regardless of who manufactured and sold the scent, copyright would be ineffective.

    Morever, there would be very complex issues of when one perfume impermissibly infringes on another. Do all chypres infringe on the original Chypre. If someone were to go out, the minute the law was passed, to copyright the basic structure of a "Chypre" would that person effectively obtained a copyright on what had been general knowledge in the industry? (Don't laugh, this issue has come up with respect to "folk songs" which were copyrighted by various musicians and producers in the 1930's -1960's. It is a problem bedeveling the computer programming industry right now.) How strong should the copyright protection be? Does a pink peppercorn and blackberry fruity floral infringe upon the fruit floral released a few months earlier? Who on earth would make this determination, a judge appointed to her position because of knowledge of insurance law or success in prosecuting drug dealers. A jury of six citizens?

    What if one Teenage Girl Jean Manufacturer X went to one of the fragrance powerhouses and said, I want something that smells and is priced similar to that perfume you came up for Teenage Girl T Shirt Manufacturer Y? Is that infringement? What if that fragrance manufacturer developed a new accord and decided to persuade all of its clients and potential clients to use it as a note?

    Even more significantly, if a bottle is marked with a specific copyright, shouldn't the juice be exactly what was copyrighted. For instance imagine a copyrighted perfume called EAU DE EXPENSIVE JUICE IN VERY SPECIAL BOTTLE with a mark that says Copyright 2012, and whose key note is an ever so special rare orchid. What happens when that orchid lands on an endangered species list and can no longer be harvested? Or maybe is just to expensive for the manufacturer. Can the manufacturer refomulate a perfume sold under a specific copyright and still sell it under the orignal name?
    Doesn't a customer, who buys that perfume in 2012, have a right to expect that when, ten years later, she buys a second bottle of EAU DE EXPENSIVE JUICE IN VERY SPECIAL BOTTLE with a mark that says Copyright 2012, it is still the same product?

  5. What an interesting post, thanks for the write up. First of all, the issue of copyright, where the company/ perfumer claims originality over a certain formula. As you say, it has to be close to impossible to say where inspiration ends and copying begins, after all, all art is build on what came before. Also, it would mean that the companies would have to come out with their formulas, which I suppose is highly unlikely that they'll agree too, is it not?
    The issue of where a formula gets the right ownership, ie perfumer/ brand, etc... For this, I do think that a comparison with musicians and authors can be found, where you can have contracts and the artist will choose either to get paid a bigger sum in advance, and leave all, or almost all, royalties to the brand, or claim a larger part of the royalties hoping the cd/ book will sell well. Could this not work for perfumers as well, if it is not how it already works?

  6. I am the previous anonymous and I am responding to Asali. As I understand it, you asked if the ownership of the copyright of a perfume formula could be negotiated between the nose and a company.
    Yes, it could. However, I, for one am dubious of the proposition that most perfumes are developed by a single artist. I suspect that this often more of a back and forth between the sponsor and a team. (In the BBC's perfume documentary, they showed several examples of such meetings. - From my perpsective this does not bear upon the status of perfume as an art, architecture is similarily the result of a lead architect, her staff, client interactions, construction field modifications etc.) Quite often that team consists of full time employees of one of hte large fragrance houses which then contract with the brand which market the perfume. (Sorry, fellows, Taylor Swift does not design her perfume. Nor does Coach).
    It is highly unlikely that such companies would ever agree to have their employees own the copyright for work which it was their job to produce.
    It is also highly unlikely the name brands would render themselves vulnerable to losing a perfume back to an original copyright holder. Thus, while they could conceivably contract with a Nose for a particular fragarance and allow that Nose to retain the copyright, that would be a very foolish corporate strategy.
    The music industry is a little different because there are elaborate licensing systems in place (ASCAP, BMI) which allow the songs and recordings to be distributed and re-worked by other artists with licensing departments taking care of collecting and distributing the royalties. This would not work for perfume. If you are Coach, or Elizabeth Arden, you do not want to license your formula to others. They want to sell it themselves.

    Sure, independent perfumers could copyright their own work and sell it through their own companies. On the other hand, for all practical purposes, they do that know, through trademark protection and copyrights on their packaging.

  7. Anonymous,
    Thank you for your insights. What's very interesting here is the difference in philosophy between the French and American law regarding copyright ownership. I remember this being the focus of intense debate in the film industry. I'm not much of a specialist, but here in France, a screenwriter does not surrender her rights to her script when it is acquired by a production company, and goes on getting royalties every time the film is broadcast, instead of getting a lump sum. Just an example.

    For perfumes, my understanding of the current structure is the following:
    On-staff lab perfumers are paid a salary, which I can suppose is indexed on their market successes, but they don't get royalties on sales.
    The few independent perfumers working for several companies might get a flat development fee, plus a percentage on the sale of the oil, which means if their client buys a high volume because the fragrance sells well, they make more money.
    In certain instances, when a perfumer cannot be sure she'll get accurate reports on the volumes of oil ordered (for instance when it will be produced in certain countries), she may sell the formula for a higher flat fee.

    In the two first cases, the system is predicated on the fact that the lab, or the independent perfumer, retains the formula and therefore the exclusive manufacturing rights of the oil. This type of agreement has been breached recently by LVMH and it's still a touchy subject in big labs.

    As for determining how an original product would be protected (which type of accord, etc), I believe the first move would be to prevent outright copies: counterfeits and blatant dupes. This can be backed up by mixed panels of professionals and consumers in a case.

  8. Again, @anonymous and Asali,
    Regarding the teamwork behind most fragrances, the specialist at the SFP panel did say that there is the possibility of a collective author.

    However, in some cases, there is indeed a sole author: this is applicable for instance to all of Edmond Roudnitska's work, as well as to certain independent perfumers who develop a product from top to bottom.

    You also raised the question of changes in the product, due to the unavailability of a certain raw material (believe me, it doesn't even have to be a rare orchid: it can be a very common raw mat that becomes restricted by IFRA).
    I believe this is a connected issue, based on consumers' rights to be told about changes in a product sold under the same name.

  9. Thanks anon and GdM, very interesting points.

  10. Anonymous, you raise so many points just one reply really doesn't cover them.
    Just to get back to your two last remarks in your second comment: brands like Coach or Elizabeth Arden do not own perfume formulas. They either buy the concentrate from the lab that came up with the composition and, if they own manufacturing facilities, they add alcohol and package the product. Or, another company detains the license to commercialize the product.
    For instance: the licences for Prada, Comme des Garçons or Nina Ricci perfumes are exploited by Puig, but the formulas and concentrates come from Givaudan.

    Second point, independent perfumers. Trademark protects packaging and names, but not the actual perfume. And even so, often the smaller niche brands don't have sufficient funds to trademark their names all over the planet. Hence, for instance, "Bois d'Iris", a Different Company product: the name was re-used by Van Cleef and Arpels.
    Conversely, Hermès sued Frapin for the use of the word "Terre", arguing that Frapin couldn't call a perfume "Terre de Sarment" since Hermès owned "Terre d'Hermès". Hermès lost the case, but the legal expense incurred by Frapin was certainly most unwelcome.

  11. Fascinating! Thank you for taking the time to educate us, Denyse. The issues certainly seem simpler for an independent like M. Duchaufour than for a large firm like Givaudan or IFF....

  12. Marla, not necessarily -- I was discussing with another independent a couple of days ago who'd seen an idea of his idea ripped off by a big launch. And conversely, quite a few small operations, for instance in Grasse, survive by doing copies for "pirate perfume" online stores, or companies in the former Communist Block, China, the Middle-East... Chromatography perfumery is endemic and affects everyone. It is killing creativity.

  13. Yeesh, that is a tangle....

  14. Which is why, possibly, many people didn't attend the conference, though just tackling the outright counterfeiting (the dupes) would certainly benefit the industry as a whole.

  15. Thanks very much indeed for this. I can see it's an extremely complex issue, because I guess at the very heart of it lies the question of whether a perfume is the work of an artist (or several artists).

    Generally speaking, France seems to have worked out its own answer to the question, but I'm not sure the UK and the USA have, which may be why it's difficult to get the ball rolling as far as finding a resolution to the copyright question is concerned.

  16. Persolaise, indeed, the legal systems regarding intellectual property are very different. I should imagine that most major composition houses being based in Paris (or having their main creative branch here), the issue is more strictly related to the French law, but any action would have to be undertaken at a EU level to be effective.

    Setting aside the matter of "art", the legal distinction in France is between "une oeuvre de l'esprit", an original work of the mind, and an implementation of technical know-how.
    A perfumer sent me a link to research demonstrating clearly that olfactory representations occur in the brains of perfumers absent a physical stimulus, which could prove scientifically that perfumes are indeed "works of the mind" rather than the application of recipes, inasmuch as the olfactory form is conceived mentally, not by just mixing stuff.