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On the occasion of the World Art Day on the 15th of April 2022, Nez invites you to (re)discover an article about the question of perfume as an intellectual property, initially published in Nez, the Olfactory Magazine #04.
In France, positive law does not recognise perfume as intellectual property from a creative point of view. But what is the case from a philosophical perspective? What aesthetic goal does this intangible and volatile oeuvre aim for?
In his 1968 work Languages of Art: An Approach to a Theory of Symbols, American philosopher Nelson Goodman approaches artworks as symbols with specific functions and distinguishes between “autographic arts” (paintings, sculptures) which result in unique creations, and “allographic arts” (music or dramatic art) which can engender multiple works and which are constructed according to a precise written notation. Specifically, he argues: “One notable difference between painting and music is that the composer’s work is done when he has written the score, even though the performances are the end-products, while the painter has to finish the picture. No matter how many studies or revisions are made in either case, painting is in this sense a one-stage and music a two-stage art.”
Like a piece of music, a perfume is not a unique, non-reproducible object; on the contrary, it is intended to be reproduced. Consequently, it conforms to the allographic system of two-stage arts.
The art of formula
The term allographic is derived from Greek: it is composed of the prefix allo (from allos, meaning other) and the root of the verb graphein (to write). Therefore, it is the opposite of the term autographic, which relates to painting, sculpture, and to all disciplines where art-works are produced by the artist directly, as a one-off original. In the allographic arts, a written document that is not the piece itself acts as an intermediary – the identity of the piece being guaranteed, provided that this notation is meticulously reproduced. According to Nelson Goodman, every copy resulting from the nota- tion will be recognised as an accurate copy. In music, this notation is sheet music, in theatre it is text, in architecture it is drawing, and in perfume it is the formulae. Because, yes, a perfume is born out of a formula, the intermediary document between the perfumer’s concept, his mental image and the physical creation. The formula, as the exhaustive list of a perfume’s components, reminds us how close perfumery is to pharmacy. Like a musical score, it gives instructions, but does not offer a method of execution, per se, like a recipe does. A formula only lists the ingredients and their proportions. Where natural ingredients are used, it will also give their quality (absolute or essence) and their origin (vetiver from Haiti or Java, for example).
Originally, perfume was made by following a recipe which, in addition to the required ingredients, gave a method for preparing them before incorporating them into the fragrant composition. The famous 17th-century Parisian perfumer Simon Barbe included such recipes in his manual, Le Parfumeur Royal (1699), written for those in the perfume trade. The terms “bring to a boil” and “leave to infuse” appear numerous times. The perfumer is also given instructions for doing his own distillation. For example, for L’Eau de Gerofle (in current French “girofle”, meaning clove), otherwise called L’Eau d’Œillet (as in carnation water), the instructions are: “Grind four ounces of cloves in the mortar and let them infuse in four pints of warm water for three or four hours in the still in the refrigeratory. Then put it on the furnace, supplying fresh water to the refrigeratory; the water which comes from it will have a sweetened odour that is more like carnation than cloves. This is the way of making carnation water because the carnation itself cannot produce good quality water.” According to a French historian specialised in perfumery, Eugénie Briot, “it was at the end of the 19th century that recipes became formulas, when perfumers had access to raw materials to mix directly with the alcoholic mixture”. There was therefore no need to tell the perfumer how to obtain the oil from a plant because materials came ready for use.
Identity and notation
The more precise a recipe becomes, filling in the gaps and turning into more of a formula, the less scope there is for interpretation in the execution of that formula. Therefore, the notation completely governs the identity of the perfume. And from a theoretical point of view, any deviation from this formula should give a different product, whether this amounts to a single ingredient being substituted (toxicological or environmental conditions allowing) or the perfume as a whole being copied through guessing with the nose. It is a “Theseus’s ship” debate. Is a ship that has had all its components replaced, piece by piece while maintaining the same general structure, still the same ship? Here the Goodmanian purist comes up against the gestaltist theorist, whose focus is not on the meticulous execution of the notation, but on the form taken as a whole. This stance is defended by Edmond Roudnitska in L’Intimité du parfum (The intimacy of perfume) co-written in 1974 with Odile Moréno and René Bourdon: “Our formulas cannot be disclosed. But women would not be any better informed even if the formula was clearly written down. For if I tell you all the components of my perfume, I still have not told you anything about its form. No more than if I describe a sonata by saying that it is composed of do re mi fa sol la si […] What matters is the arrangement of all these components.” We switch to a perception aesthetic that does not favour production rules (the accuracy of the formula), but rather the end result, including the cognitive and emotional mechanisms at play in the reception of the perfume. We fix our perspective on recognising an entity – a form of perception – just as when we are put on hold on the phone, we might recognise the music as The Four Seasons, even if a note is wrong and the tempo has been altered.
A system of secrecy
There are two ways to reproduce a perfume: the first is to replicate the formula (a correct copy); the second, in the absence of a formula, consists of reproducing what you can smell (here, you have to use guesswork). In order to protect the fragrance, given that it is difficult to avoid the guesswork approach, the perfumery profession opted to keep formulae secret so as not to make copying easier. Perfumes were, for a long time, associated with apothecaries’ remedies because they shared the same botanical roots. But at the beginning of the 19th century, the distinction was made clear. “On August 18th 1810, an imperial decree formalised the separation of perfumery and pharmacy,” notes Annick Le Guérer, a French anthropologist and historian specialised in the history of perfume, in her 2005 book Le Parfum : des origines à nos jours (Perfume: from its origins to the modern day). In order to protect consumers from charlatans, Napoleon ordered apothecaries to reveal their formulae, whereas perfumers were not obliged to do so. From then on, a fragrance whose formula was kept secret could not be sold for its healing powers (nor could the seller incite people to drink it). After the therapeutic era, we enter the cosmetic era, where the formula remains the exclusive property of the perfumer. Today, the model has evolved somewhat, because of the shift to an industrial scale. Apart from rare cases where brands have an in-house perfumer (Chanel, Cartier and Hermès, among others), they use external perfumers who are employees of fragrance companies (such as IFF, Firmenich, Givaudan) to create the perfumes. The formula is never revealed to these brands; it stays in the hands of the fragrance company that sells them the concentrate. It is then the brand which dilutes it with alcohol and bottles it. Once the stock has been used up, the brand will advise the fragrance company of the volume of concentrate required. And even if the perfumer moves to a different fragrance company, it is the original company that continues to produce the concentrate. The perfumer, in a way, relinquishes ownership of their formula to the company that employs them.
However, with the improvement of analytical instruments based on gas chromatography techniques in the 1980s, it has become increasingly easy for an experienced perfumer to determine the composition of a perfume and therefore to imitate it. In this case, since perfume is not protected by copyright, commercial laws command.
The reproduction business
There exists a wide range of perfume reproductions from the souk where the customer knowingly buys an imitation of the product without a packaging, to more sophisticated copies, sold on the market under other names and other brands. In the absence of copy- right, a case against the latter may be brought to court on the principle of unfair competition, or even parasitism, and would be dealt with in the commercial court.
Famous cases include the Thierry Mugler lawsuit against Molinard. On September 24th 1999, the Paris Commercial Court recognised the originality of the perfume Angel, and also the parasitism and unfair competition perpetrated by Molinard through their marketing of Nirmala (a perfume originally created in 1955 but later reformulated). A group of 1,000 consumers was tasked with judging the conformity between the two perfumes, and the vast majority could not identify any differentiating details. This affinity was highly damaging for the defence given that, as Egon Peter Köster, a Dutch psychologist specialised in olfactory research, points out in his 2002 essay The Specific Characteristics of the Sense of Smell, olfaction can detect differences more easily than it can identify common elements. Yet in general, counterfeiting is assessed on the basis of similarities,not differences. In this case, since the differences in the products were imperceptible, the scents were considered to be identical, and Nirmala was judged to be a replica of Angel. Following the ruling, Molinard was forced to modify its formula. Prosecutions of this kind are nonetheless very unusual and many cases do not even make it to court
Same name, different scents
In an article published in 2011 in French daily Le Monde, journalist Nicole Vulser revealed that, following the appointment of an in-house perfumer at LVMH and subsequent reformulations, the authorship of a number of the group’s leading perfumes could no longer be claimed by the fragrance companies who originally created them. While the general forms of the perfumes had been preserved, so as not to disconcert the consumer, they no longer conformed precisely to the original formula. By way of proof, ‘captive’ molecules – the compounds reserved for the exclusive use of the fragrance companies which created them and which act as true hallmarks – were not present in certain perfumes. But in this case, without legal proceedings, taking on an industry giant is, commercially speaking, like shooting yourself in the foot. Because perfumery has long relied upon the principle of the ‘gentleman’s agreement’, which favours commercial interest over legal scrutiny, compromise is preferable to publicity.
As a result, different perfumes have been marketed under the same name. This demonstrates that, ultimately, a perfume is not simply an olfactory substance. It also comprises the bottle, the packaging and above all the name, the continuity of which guarantees the identity of the work and promotes a favourable reception for the perfume. It is in fact the diversity of materials (olfactory, semantic and visual) that makes a perfume unique.
A hybrid and heterogeneous art
Perfume, by definition a blend, is both a decorative art, for ornamental use, and a contemplative endeavour. There is, therefore, a distinction between perfume on the blotter – when being assessed by an expert, for example – and perfume on the skin, which becomes an intimate part of the wearer. Consequently, diffusion may also be claimed as a third phase in the impression of a perfume. Diffusion cannot occur without a vehicle, but the very nature of that vehicle affects the aesthetic focus. Indeed, different details in a perfume are identified depending on whether one is sniffing a blotter or smelling the sillage of someone one meets. In one instance, one can perceive the progression and note the different ingredients; in the other, one perceives a general impression. Without going back over the distinction between major art and minor art (an ever-changing boundary previously discussed in Majeur ou mineur ? Les hiérarchies en art, a collection of essays edited by French art historian Georges Roque who identifies the academic arts as “major” and the so-called impure arts – industrial, decorative, folkloric – as “minor”), perfume is by nature a mixed-up art. While it is by no means the only art in which commercial and aesthetic concerns compete with one another, it is also a hybrid art and does not aim to stimulate only one sense. It seems imperative that we highlight this heterogeneity instead of suppressing it and focussing only on smell.
Essentialism vs pragmatism
There are two possible approaches to aesthetics: on the one hand, an essentialist approach which seeks to define criteria for art forms and conditions for the production of an artwork within that domain (an approach that relates to judging whether a piece is or is not ‘art’); onthe other, a pragmatic approach which sets conditions for the completed artwork, that is to say, it states that an object functions as a work of art (provided that…). In the field of perfume, the essentialist approach has been extensively trialled, given the need to be compared to other art forms. This recalls the criteria proposed by Edmond Roudnitska, according to the works of French philosopher specialised in aesthetics Étienne Souriau, in his 1977 book L’Esthétique en question : introduction à une esthétique de l’odorat (Aesthetics in question: an introduction to the aesthetics of smell). Perfume is considered an art if it can be proven to fulfil the following conditions: (1) that it produces stimuli for a specific sense; (2) that it presents a set of elements (qualia) that are combined and ordered (as a range or a palette); (3) that it can demonstrate the existence of production methods that allow for the creation of artworks (single or multiple) while guaranteeing their identity; (4) that it establishes an educational system to inform both creators and the public; finally, (5) that it constitutes, through its artwork, a recognised means of expression for the creators.
Although criteria 4 and 5 were difficult to fulfil for a long time, today everything is done to satisfy them, particularly with the advent of storytelling around perfumes and specialist media, and the publicity around perfumers and their creative approach. In a similar vein, there is the work of the “Colisée group” of perfumers (Blayn, Bourdon, Haasser, Delville, Latty, Maurin, Morillas, Preyssas, Roucel, Sebag, Vuillemin) detailed in their 1988 essay Questions de parfumerie. Essais sur l’art et la création en parfumerie (Questions of perfumery: essays on art and creation in perfumery) which defines the specificities of perfume as an artistic medium of representation. While they are necessary and contribute to the reputation of olfactory creation, these perspectives are still somewhat rigid. The pragmatic approach modifies the acceptance or rejection of the “art” label, arguing that, like a Rembrandt used to cover a hole in the wall (to use Nelson Goodman’s example), a perfume used simply as a deodorizer, however refined and nuanced it may be, can never fulfil the conditions necessary for it to become an aesthetic experience. This experience is largely born out of the attention paid to a perfume, taken for what it is, and in the articulation of the encounter. In order for perfume to break away from its ancillary aspect it must be given a frame – which, for want of a visual one, is that of a focus of attention. It does not necessarily require a museological setting, rather a rigorous welcome, a conscious openness to olfactory reception.
This article was originally published in Nez, the Olfactory Magazine #04
Main image : Vassily Kandinsky, Mit dem schwarzen Bogen (Avec l’arc noir), oil on canvas, 1912, Centre Pompidou