Does a French copyright smell anything?

The FIAC, the international fair of contemporary art, just ended in Paris. Its visitors were able to visit a glass cube, the OSNI, placed on top of the Pavilion of the Palais de Tokyo. OSNI stands for Objet Sentant Non Identifié, ‘Unidentified Scented Object’ and was created by Mathilde Laurent, a perfumer for Cartier, along with Munich climate engineers Transsolar.

Visitors entering the cube were able to go up a staircase through a cloud of the Cartier L’Envol (The Flight) perfume. The cloud is clearly seen to viewers outside OSNI. The fact that the perfume can be seen is as important as it can be smelled.

This installation led French magazine Télérama to ask the question: can perfume be a work of art? Modernist called it “[a] true olfactory and immersive artistic work that presents a completely new way of using smell as a medium of creation.”

Wallpaper quotes Mathilde Laurent as saying “I’m not an artist…but…I feel that to create a piece like this is our duty as a house because it’s important that we sustain olfactory art like all others.”

Could OSNI be a work of art? Is there such thing as olfactory art?

Perfume is not protected by French copyright.

Even though article L.112-1 of the Intellectual Property Code clearly provides that its provisions “ protect the rights of authors on all works of the mind, regardless of genre, form of expression, merit or destination,” perfumes are not protected by French copyright, the droit d’auteur. The Cour de Cassation, France’s highest civil court, ruled in 2008 that “the fragrance of a perfume, which proceeds from the simple implementation of a know-how, does not constitute the creation of a form of expression that can benefit from the protection of copyright”. Therefore, L’Envol is not protected by copyright.

However, OSNI is way more than a perfume. It is an art installation, with which visitors are interacting.

Does France protect performance art?

OSNI’s visitors were able to go up and down the staircase inside the cube, and were seen from outside. Were they part of the performance? Were their reactions to the scented air part of the performance?

France recognizes that an artistic performance may be protected, not by copyright law, however, but by the right in one’s image. Reproductions of an artistic performance, such as photographs taken of it, are, however, protected by the droit d’auteur. In that case the performance artist and the photographer are co-authors, Paris Court of Appeals, 4^th Chamber B, December 3, 2004.

Is the perfume an element of the protected work, the cube?

If perfume can not be protected as a scent, could it be protected as a work of art? The perfume is clearly seen here, and can be smelled only if one is inside OSNI. Viewers from outside cannot smell it, but they can see the way the cloud of perfume moves inside the cube.

The cube can be considered a sculpture, and, as such, protected by the droit d’auteur. The scent is part of it and thus protected as an element of the sculpture, but still does not gain individual protection. However, one could imagine that if Cartier were to sell OSNI to an art collector, who would then replace the scent with the one of his favorite aftershave, this would be copyright and droit moral infringement, and would conjure the issue of whether perfume is protected by the droit d’auteur out of the (crystal) bottle.    

Sun, Sunburn, Sex and Selfies

You may have heard of “sunburn art” which seems to be the latest selfie trend. One can place pieces of (artfully) cut cardboard onto one’s skin to shield body parts from the sun, and then hit la playa sans sunscreen. At the end of the day, voilà!, #sunburnart is posted on social media. One can also use sunscreen to design lighter shaded areas on the body, while the unprotected skin takes a nice lobster color. Indeed, while #sunburnart selfies will not send a piece of art tumbling down, they nevertheless come with risks, ranging from potential online embarrassment to skin cancer.

#SunBurnArt As Dumb Trend

This is a social media trend, and some of the sunburn “art” is not much to look at, but some patterns created on the skin are certainly original enough to be protected by copyright. Under U.S. law, sunburn art can be protected by copyright if it is original enough and if it is fixed. While a tan is ephemeral (although the sun damage is permanent), it is fixed by the selfies, and may thus be protected by copyright. One can imagine a copyright infringement suit filed by someone claiming that a “selfieccionado” has ripped off his #sunburnart, although I hope never have to read this complaint, at least, not before cocktail hour.

#SunBurnArt as Performance Art

Because #sunburnart is potentially dangerous to one’s health, and as some of the patterns are quite original, one could consider some of these selfies as performance art on social media (oh yeah!).

Performance artists often put their health, even their lives, in jeopardy when using their bodies to create a performance. In the 1971, performance artist Chris Burden had a friend shoot him in the arm with a gun for the performance Shoot. The same year, Gina Pane climbed a ladder, which steps bore razor blades, to create L’Escalade. Three years later, Chris Burden was nailed on a Volkswagen “bug” car, which was pushed out of a garage, where the artist stayed for two minutes to create Trans-fixed. For Rhythm 0, created in 1974 in Italy, Marina Abramović placed 72 objects on a table, including a gun, a bullet, nails, a whip, a pocket knife and, yes, a band aid and alcohol, which the audience could use as they wished  on her body. Innocuous, even potentially pleasant objects, such as perfume, water, or a coat, were also available to be used. However, the artist ended up covered in blood.

These performances were all recorded, albeit not on selfies, and thus are protected by copyright in the U.S., which protects works only if fixed in a tangible medium. However, a performance artist wishing to be the sole right holder should make sure that the person photographing or recording the performance cannot claim the status of a co-author. Also, that fixation must be done “by or under the authority of the author.” This was reinforced recently by the 9^th Circuit en banc in Garcia v. Google, where the court noted that actress Cindy Garcia could not claim copyright in her performance, because, among many other reasons, she had not fixed her performance herself (see p. 16).

In France, the Paris Court of Appeals held in 2004 that the photographer who had taken pictures of the Première Tentative de rapport avec un chef-d’œuvre performance created by Alberto Sorbelli, dressed as a female prostitute, at the Louvre Museum in front of the Mona Lisa, was only the co-author of the work, along with Mr. Sorbeli, who had filed a copyright infringement suit after pictures of his performance had been published without his authorization and using a different title. Interestingly, Mr. Sorbelli had also claimed a violation of his right to his image, and this claim was also successful.

Performance Art and Nudity, Oh Là Là!

Let’s stay in France, where performance artist Milo Moiré was arrested this month in Paris for public exposure, putting a stop to her performance piece wherein she asked delighted tourists to take selfies with her, stark naked, in front of the Eiffel Tower. Indeed, even though the French have generally a laissez-faire attitude about nudity, “sexual exhibition imposed on the sight of others in a place accessible to the public” is incriminated by article 222-32 of the criminal Code and is punishable by one year imprisonment and a 15,000 Euro fine. It isnot nudity per se which is incriminated, but sexual exhibition, and the French courts consider what was the intention of the person who exhibited herself to judge whether a particular public nudity is indeed a sexual exhibition. The artnet news article (see above) notes that “nudity is normally tolerated [in France] if it is part of a performance. The arrest indicates that France does not view her as a legitimate artist.” It is probable that the police officers who arrested Ms. Moiré could not assess on the spot whether her public nudity was or was not sexual exhibition, especially because she encouraged contact with members of the public. Ms. Moiré was not charged, but if she had to face trial, her lawyer would probably would be successful in arguing that, because her public nudity was part of her artistic performance, the facts lack the moral element of “exhibition” and thus cannot be incriminated.

Let’s all have a fun and safe summer!

Image courtesy of Flickr user Classic Film under a CC BY-NC 2.0 license.

Don’t forget the magic word . . .

A German court has ordered a museum to take down photographs of a Joseph Beuys performance work, The Silence of Marcel Duchamp is Overrated, originally staged on live TV in 1964. The court held that the performance piece is protected under copyright law and that the photographs were infringements – as unauthorized adaptation or transformation (Article 23 of Germany’s copyright law). The museum is appealing on the basis that the photos are not artistic transformations or adaptations of the original work but are documentary in nature. The claimant, Beuys’s widow, says the exhibition misrepresented her husband’s work.

The Cardozo Art Law Society blog wonders how else performance art should be documented. With permission, perhaps?