May 31, 2017 Repository 204: Copyright and the Five Senses | How to See Smell as an Artistic Expression Posted In: contemporary art, culture, olfactory art, perspective

Image courtesy of Bright Green.

There is no “must” in art, because art is free. – Kandinsky

As an American, a creative thinker, and someone keen on making a living with her creativity I’ve been warned to review the concepts of copyright. To protect my “intellectual property”, and to be wary of people with more resources than I, as they can swoop in, take my ideas and run with them. I get this, and yet I still don’t know when should a veteran artist, writer and freshly-minted perfumer carry an NDA around before having stimulating dialogs with other creatives about possible projects and collaborations?

Years ago I hit a stumbling block on one of my creative projects, a layman’s guide to contemporary art. I could not afford the publishing rights so I shelved the project. I then became obsessed with cultural commons and the history of copyright. My Coloring Project was born and that was that.

In my research I learned that cultural commons were once a seminal idea in the Jeffersonian era, almost 200 years ago – knowledge sharing is exactly why Benjamin Franklin could have invented all of the things he did (swim fins! urinary catheter! odometer! bifocals!). He had access to papers, discoveries and inventions. Nowadays if you invent something, you guard it in the event that it makes you, and only you, money. And since we live in a capitalist society, the things that make you money are considered valid and legally protected.

So where do the arts fit in this? The arts in the legal forum are only literature, music or visual arts. If you considered the arts as a family of the senses you would quickly see that only the hearing and the visual are considered “fine art” as it’s impossible to copyright a recipe, and now I’m learning it’s also not possible in the states to copyright a scent, never mind basket weaving (touch).

Since the Age of Enlightenment, 300 hundred years ago in the Western world the visual and hearing have retained top status amongst the senses, while the touch, taste and smell senses remained in the domestic sphere and, one might add, considered related to the feminine. So the noble versus the primitive senses march side by side within the sensorium. Increasingly however the distinctions between art and craft have been blurring where painting (vision), olfactory art (smell) and haptic art (touch) may actually be seen as equals in the art/craft value system. The sense of smell seems to be having a renaissance and is charting its course back to the top of the sensorium. Thanks in part to artists commanding the use of scent in their works as a medium, as legitimate as painting, sculpture or film.

In our litigious society authorship and originality are rewarded for better or worse with a copyright. So is scent or scent art copyrightable? As suspected the US version of copyright says in fact it is not – at least in the opinion of Charles Cronin, author of the article “Genius in a Bottle: Perfume, Copyright and Human Perception.” His argument is that “copyright should protect only the works that are “perceptible to humans through our sense of vision and hearing”.

This kernel of admission is fascinating. It could take months and years for a perfumer or artist to create fragrance or an olfactory experience, and yet there is no true copyright of this work? It’s too ephemeral according to lawyers. Trademark, trade secret and patent laws Cronin says are sufficient – mind you these are only things available to large perfume corporations and not the smaller, and more innovative niche scene of fragrance – most small entities can not pay legal counsel to navigate these waters. The author cites that in Europe, thanks to the French legal system without binding precedence, there are disparate outcomes where some cases are in favor of copyright for scent, in that it could bear the personal imprint of the creator thereby rendering it an original work of authorship eligible for copyright protection, in other cases they see no case for this.

The French court at one point said that fragrance is not copyrightable because people who smell them can’t meaningfully or consistently describe them. Unlike porn, for fragrance you supposedly can’t know it when you smell it. The lawyer author goes on to cite that because people can recognize a song in a beat or two but have no idea what a fragrance is or how to describe it, is sufficient evidence for an artfully designed scent (with an author) to not have a copyright. I beg to differ – songs are repeated over and over on the radio – there is a sense of frequency and awareness. On the other hand people are not exposed to fragrance or scent in this way. It is not a reflection of scent being inferior to music, it is simply an illustration of people’s lack of exposure to, education on or curiosity of it to date.  A proper analogy following his argument to copyright scent, in order for music to be copyrightable someone other than the author would need to accurately describe in words “Take Five” by Dave Brubeck. So his argument sinks further, as I know no one who could describe in words the tune of this or any song regardless of how many times they have heard it (not humming, but in words). 

He continues his hostility toward scent by stating that scents are primal and therefore instinctual versus visual, which he cites is appealing to the intellect. I would beg to differ as the most remarkable shifts in perception, intellect and awareness happens simply by paying attention to the abstract which is the sense of smell. They are not unrelated, and it is possible to “think” in odors.

He argues that the goal of perfumers is to replicate nature and therefore they are artisans, not artists. Most perfumers are not imitating nature today – they are using notes and fragrance in entirely new ways, and this therefore should be considered in the argument of artisan versus artist. Again, following his line of thinking, if artisans try to replicate nature, then Monet would have been an artisan and not an artist.

A reminder to the author that first we are animals, then we are these intellectual beings that we perceive only through our words. First we smell, touch, listen and see. Lastly, the chink in his argument I believe lies in his statement that if one loses their sense of smell they won’t go “crazy” in the manner if they loose their sight and hearing. An obvious prejudice here with the senses, and clearly he has never heard of the genius that is Helen Keller.

Fragrance is Art and it won’t prosper unless it becomes less secretive

“As art, perfumery will not rise to the height it should attain because those who benefit from it commercially are so secretive about their procedures. No industry that operates under a veil of secrecy can advance or take a position of any general importance. I would suggest following the path of physicians from Ancient Greece who, every year, inscribed in the temple pf Asclepios all the cures they had made and means by  which they were created.” – Septimus Piesse

The good news is that the fragrance world is opening up and artists are able to procure the same materials used in a large perfume houses. The economies of scale are not friendly to the artist, but given proper sponsorship or commissions artists may be able to crack these walls. Along with the financial support and legitimacy though artists, perfumer or otherwise, should commit to knowledge sharing per the idea of physicists sharing their cures for the sake of innovation and growth. Unfortunately artists tend toward being less generous with their ideas in this way, and also appreciate the mystery of the art. Peter De Cupere has recently written a “manifesto” in his book designed to inspire other olfactory artists and people in general to open their minds to scent art, and to define it in his own way. While the manifesto does insist that people smell harder, it does not read to “share your work process with others so that they can grow and learn too”.  

“A major new perfume is not the result of industrial process. but is an aesthetic project that consists of the artful combination of some dozens of essences with the purpose of obtaining thereby an olfactory creation both beautiful and distinctive.” – Edmond Roudnitska

Sound like art? I think so too. Now should there be a copyright? For this I’m still on the fence, and look to those more experienced for counsel.

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  1. Leon III Trice • May 31, 2017


    Fabulous and fascinating all in the same scent!

    Leon Reply

    • Catherine Haley Epstein • May 31, 2017

      Thank you Leon! So many bits to consider in this field. Thrilled to be on the scent trail to learn more and of course advocate for freedom and learning;-) Thanks again for reading, very generous of you! Reply

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