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Fragrances created by Philip Goutell for Lightyears, Inc. can be found at —
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For generations aspiring perfumers learned their craft by trying to replicate famous perfumes, just as serious artists honed their skills by copying art masterpieces. In both cases the copying was for technical education. Both perfumer and artist strove to develop foundation skills which, in time, would allow them to develop richer styles of their own. It would be unthinkable for a serious artist or perfumer to be ignorant of existing masterpieces and the techniques used to create them. None of this involves commercial exploitation or "knocking off" the original.
I have limited my copying discussion to "famous" perfumes simply because, if a brand is not famous there is little economic motivation to copy it. This in itself suggests that the copier is taking something of value from the creator.
There are two elements to a famous original that lend themselves to copying: the fragrance compound ("juice") itself and the packaging. These can be copied independently or jointly depending on the copier's business plan.
Replicating A Fragrance
Modern perfumery
technology has made it extremely easy to replicate a famous compound.
Depending on the skill of the replicator and the replicator's budget,
the replica fragrance could be be anything from a twin to a distant
cousin. Once the replication is created, its marketing can take
several paths but in most instances, whether it is being sold in bulk
"to the trade" or packaged individually for consumers, it
is pitched, at a minimum, as having an association with the
famous original. The name of the famous original is what propels
sales. Without this name association there would be little or no
incentive to make even the modest investment needed to replicate the
original.
Replicating The Packaging Of A Famous Fragrance
In all
countries except the Netherlands, perfume compound cannot be
protected by copyright. (Manufacturers of fine perfume generally do
not apply for patents on their work because, in order to do
so, they would have to reveal the exact formula and their
patent protection would expire in a relatively short period of
years.)
Packaging, ironically, can be protected by both copyright and trademark. If a replicator's package comes too close to that of the original, lawsuits are sure to fly. Often the game of the replicator in packaging is to come just close enough to suggest that his product is based on the famous original. Depending on how aggressive the replicator's marketing stance, his advertising may position his product as being either similar to the original and giving the same satisfaction or being as good as the original yet offering tremendous savings.
Today we buy cheap reproductions of great works of art and less expensive replications of famous perfumes. What are the implications of this copying for commercial purposes?
In the case of paintings by the masters, the artists are long dead; they are not losing out economically. (Ironically, in some cases people or institutions who have acquired their works now fight court battles to prevent copying of "their" images!)
As for perfume, many of the creators of famous perfumes are very much alive, as are the marketing firms that commission their work. What is the impact of replications on these creators? Do they cheerfully regard imitation as the highest form of flattery?
It is estimated that perfume generates about $20 billion in annual sales worldwide. Within this market, and perhaps a little beyond it, are (1) fine fragrances, the "original" perfumes from major and minor perfume makers, (2) replicas, perfumes made by reverse engineering fine fragrances, and (3) counterfeits, perfumes that lie about their origins and pretend to be what they are not.
Of these categories, the only one with clear boundaries are the counterfeits -- the products that are vouched to be what they are not. Both within the fine fragrance and replica categories copying -- imitation -- exists. While fine fragrances are promoted as "original creations," their development almost always owes a great deal to fragrances that have gone before them. This is why when, at their introductions, they are reviewed by independent journalists, there is often a comment that the new fragrance "smells like" a better or worse version of an existing familiar fragrance.
As to replicas, -- which constitute a very large segment of the total market -- they too come in a variety of flavors. Some are sold as substitutes for famous brands: "If you like CK-One you'll love our X-brand." Often these substitutes are packaged in boxes which suggest the original. Often they come as close as they can, just short of getting sued for copyright or trademark infringement.
Other replicators simply take advantage of an easily obtained replica compound, create an absolutely new and original identity for it and promote it as their own. In most cases their customers will never know that the fragrance is a replication of a famous original.
Where a replicator creates his or her own unique identity for a replicated compound and sells it as his or her own, economic loss to the originators is negligible. If the replicated compound were not available, this brand would not exist. Clearly the originator would be reluctant (or banned by contract) from selling the original compound to this marketer. The most damage the original creator could claim would be that bulk sales of the replicated perfume diverts sales and that competition (nothing wrong here!) could take sales away from them. As a hypothetical proposition, if replication of famous fragrances was to be strictly banned, the creators of these fragrances themselves would find themselves in a sticky situation since, quite likely, each new "creation" they offered would be subject to copying claims and lawsuits by competitors, often with justification.
But when a replica or counterfeit is sold as, or as a substitute for a famous perfume, the creators of the famous perfume are hurt in two ways. They lose money (sales) and their reputation is injured. Look at the arguments and see it for yourself.
First of all, sales are diverted from the original fragrance to the replica or counterfeit. Defenders of the replica will say -- quite rightly -- that the people buying the replica might never have paid the price for the original. But equally true, these same people might never have paid the price for the replica had they not believed it to be a credible substitute for the famous original. Without the fame and reputation of the original there would be no market for the replica and some of the buyers might cough up the money and purchase the original. Certainly without the replicas, the famous originals would have more perceived value.
Is the original badly hurt by sales of replicas? For those who buy replicas rather than originals, there will be a tendency to believe that the are getting a credible substitute -- a "generic version", if you will -- of the original. And, if it fails to please them, they are more likely to blame the creator of the original rather than the seller of the replica. On the other hand, if they like the replica, they are likely to blame the creator of the (higher priced) original for trying to "rip people off."
Of course the seller of the original has absolutely no control over the quality of the replica and the buyer of the replica is likely to have little or no experience with the quality of the original. While at first puff, both fragrances can smell similar (and the replica buyer can spritz himself/herself at a fine perfume counter to test the original), the fine fragrance generally has a depth and persistence that is rarely found in the replica. So the buyer of the replica may critique his or her purchase as if he or she had experienced the original.
Replicas are often defended on the grounds of "consumerism." Were it not for the replicas, famous brands would cost more. Consumers (somehow!) deserve "affordable" perfume. But unlike the arguments for brand name vs. generic drugs, perfume -- fine perfume -- is not a functional product and the replica is not the chemical equivalent of the original.
The opposite argument could be made that without replicas, "non famous" brands would have to hire perfumers and spend more money developing their non famous fragrances. This would lead to job creation -- a social benefit. Also, because the non famous brands would now have no market, they would have to hire advertising and marketing experts to sell their fragrance. This would lead to the creation of additional jobs.
From a different point of view, the marketing giants who sell fine fragrances understand the art of pricing their products for maximum profit. They know the mathematical formulae that measures price against volume and select the price point which maximizes profit. This could mean lowering price to achieve volume or, in the case of an inherently low volume fragrance, raising the price to cash in on the demand.
The "value" represented replicas can also be illusory. While a replica may be priced somewhat below the original, its quality is often far lower. Where then is the value?
Copying expands the market for perfume. It does allow the less affluent to enjoy "affordable" perfume and it does allow small marketing companies to introduce "their" brands using either replica fragrances, replica packaging or both. Copying also expands the international fragrance (chemical) industry by reducing development costs and expanding the universe of potential buyers.
But there is no getting around the fact that the creators of fine perfume lose out in both sales and reputation due to copying.
The proposition has been put forth, particularly by French perfumers, that a perfume is an artistic creation. This is more easily understood by those who have been involved with perfume creation or are aware of the history of perfume and the limited number of "breakthroughs" in style and fragrance over several centuries. In 2004 a Dutch court took their point of view and allowed perfume to be considered an "authored work" rather than a mere scent from nature. The United States and most other countries have not yet taken this viewpoint.
But perfume is like art or music. A musical composition does not have to be brilliant to quality for copyright protection. Practically any commercial jingle is protected, regardless of the level of skill of its creators. Fine perfume, on the other hand, while involving a great deal of both art and skill in its creation does not, currently, qualify for such legal protection. Those who create see their work routinely plundered by others who not only rob them of economic incentives (since why pay for a new fragrance when you can copy an existing one!) but also see their reputations tarnished in the minds of those who believe their creations are no different than the replicas.
Without copying there would be far fewer fragrances on the market, but we might see greater innovation in perfumery from both the high end houses and by those who are currently selling replicas. Is it possible that less copying could give us more great perfumes?
