New York partner David Einhorn and associate Lesley Portnoy co-authored an article, "The Copyrightability of Perfumes: I Smell a Symphony," which was published in the April 2010 edition of Intellectual Property Today magazine.
According to Einhorn and Portnoy, "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."
The article goes on to address the issues of both perfume copyrightability and the appropriate scope of protection for perfume copyrights. It begins with a brief summary of the history of the perfume industry, followed by an examination of recent Dutch and French decisions on copyright protection for perfumes. Einhorn and Portnoy then analyze the issue of perfume copyright protection under U.S. law as well as the appropriate scope of such copyright protection. Following this analysis, the article concludes that U.S. courts should recognize copyright protection in perfumes, but should also carefully limit such protections so as not to unduly restrict competition in the industry.
Click to read the full article, "The Copyrightability of Perfumes: I Smell a Symphony."