Published  12/05/2015

I’m Here But You’ve Gone

I’m Here But You’ve Gone

A number of artists have each spent 10 months researching fragrances before devising one of their own. It is an interesting idea, but it also raises the question of copyright law and whether perfume can be considered art

Fiorucci Art Trust, London
23 April – 9 May 2015


Consider the following: a curator comes up with an idea for an exhibition in which the artistic expression is scent. She then forms a partnership with a perfumery and together they devise a brief for the exploration of olfactory art. They invite a number of artists to spend time working at the company alongside an inhouse perfumer. Each artist is to be given access to a library of oils, and the means of combining compounds to form a new scent.

As the artist is not constrained by trade-related issues, the scents composed need not conform to the vocabulary used by commercial perfumers. During the research period, the artist will gain an understanding of scent composition: of how molecules are combined, of the use of perfume bases in building a scent, of the temporal release of each of the components making up the scent, and of how temperature and skin reaction affects individual release times; of whether or not the artist intends to produce a representational scent. If the former, they might come to know of Edmond Roudnitska and Diorissimo, the perfume he composed to represent the smell of the lily of the valley. As a scent can be composed of 200 constituents, the rate of release – the mixture of heavy to light molecules – is essential in achieving the desired temporal effect.

Thus, as part of a curated project, the Fiorucci Art Trust and London-based Creative Perfumers have formed a partnership and invited a number of artists to contribute a scent of their own making. The result of the 10-month research period is an exhibition held within Fiorucci’s London headquarters. Each of the artists is given a place in which to release their work. These works include a saturated concoction of several of the most popular perfumes, a rich floral scent, a territorial scent, a light aerial scent supposedly reminiscent of the soul leaving the body, and a scent attempting to capture the moment of newness.  Some works are released continuously, thereby limiting the perceiver’s experience of the overall effect of the scent; others choose to present their work by means of swatches, thus enabling the perceiver to experience the finer details of a scent’s life as it unfolds in time.

Although the medium of scent is a well-charted terrain in terms natural and/or synthetic molecular combinations realised within the gamut of the perfume industry – even extending to an institute of heritage, the Versailles Osmothèque, a museum of scent devoted to reproducing scents of the past – it presents an enigma when taken as an example of artistic expression within the current framework of international and domestic copyright law. If copyright law, its classificatory system and requirements, is to be considered as paradigmatic of the way in which we shape the boundaries of art, then anything that falls outside its remit should not be considered art. If, on the other hand, copyright law is construed as an ever-broadening collection of statutory amendments and case law, then any unorthodox expression serves only to broaden the remit of what is constituted by the term artistic expression. Given that copyright law exists to confer certain authorial rights in both the original and any subsequent reproduction, including adaption, the driving force behind such a law is not necessarily in unison with artistic expression as such. Disputes arise; and in the course of assessing a case, the claimant needs to show that a substantial part of her work has been reproduced in the respondent’s work. Proof of infringement is needed; and proof is generally construed as resting on the notion of tangibility. Therefore, a work is required to be sufficiently stable for reproduction purposes. But the requirement of fixation is often at odds with works of contemporary art.

In a recent US case, Kelley v Chicago Park District (2011), the disputed work consisting of cultivated plants entitled Wildflower Works failed the fixation test on the grounds that its essential character is protean, and therefore too unstable to be considered as fixed. Summing up, the Seventh Circuit concluded: “… a garden is simply too changeable to satisfy the primary purpose of fixation; its appearance is too inherently variable to supply a baseline for determining questions of copyright creation and infringement.1

In the UK, Mr Justice Lloyd, in his judgment, Creation Records v News Group (1997), notes that a collage of images, without an adhesive, has insufficient binding properties for generating a single enduring art work. The work in question was viewed as “... intrinsically ephemeral, or indeed less than ephemeral, in the original sense of that word of living only for one day.”2

If works of this kind prove problematic in terms of copyright law, what would happen in a case where the work in dispute is scent? In 2006, two European courts pronounced judgment on the question of protection of scents. In Bsiri Barbir v Haarmann & Reimer, the French court of Cessation ruled that fragrances could not be protected because a perfume is the outcome of know-how – the technical expertise of devising a chemical compound – and, as such, could not be considered a form of artistic expression. Kecofa v Lancôme, a case heard at the Dutch Supreme Court, had a different outcome. The court held that scent could be, in principle, the subject matter for protection, if the work in question was perceptible to one or more of the human senses and was possessed of a character marking it as originating from a particular author. Although the Dutch case has, in some quarters, cast confusion on the means by which a claimant might provide sufficient reason for infringement, it has opened up a discussion on the nature of copyright protection, and its relevance to contemporary art.

1. Kelley v Chicago Park District, Nos. 08-3701 & 08-3702 (7th Cir. Feb 15, 2011), § 32.
2. Creation Records Ltd v New Group Newspapers Ltd (1997), England and Wales High Court, Chancery Division, 370, § 12.


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