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The Copyrightability of Perfumes: I Smell a Symphony

By David A. Einhorn and Lesley Portnoy of Baker & Hostetler LLP1

"Perfume is an art form. In the same genre as music and painting. It requires talent, expertise and most of all passion."2

Since the time of the Victorian Era, perfumes have been described in the vocabulary of music. For example, Marie Antoinette's perfumer, Jean-Louis Fargeon, described perfume like a musical composition, "I have ordered my entire life as I ordered my scented compositions. First one strikes a chord in the major mode before letting escape head notes which then rush forward-foolishly, lively, and impatiently like youth. Middle notes follow-sweet, accomplished and vibrant like the full realization of a personality. Finally, heavy, lasting, and tenacious, the bass notes sound."3 The creation of perfume is a creative and artistic endeavor much the same way that a painting, sculpture or work of music are creative endeavors. Therefore, it would be fair to protect perfume creators through the copyright laws in much the same manner as other artists are protected. However, this issue has never to date been addressed by the U.S. Copyright Office or U.S. federal courts.

This article will address the issues of both perfume copyrightability and the appropriate scope of protection for perfume copyrights. The article begins with a brief...

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