CONTEMPORARY artists have consistently pushed the boundaries of what constitutes art but not even the most outrageous of the Young British Artists could have sold this one to Charles Saatchi.

In the Dutch Supreme Court, the French cosmetics company L’Oréal has argued successfully that one of its fragrances should be copyrighted — in effect as a work of art.

Just as Shakespeare composed his sonnets, Beethoven his Fifth Symphony, and Tracey Emin her unmade bed, so L’Oréal has argued that its workers (or artists) have created its Lancôme fragrance Trésor. The company claimed that Kecofa, a small Dutch company, was copying the fragrance.

According to L’Oréal, 23 of the 26 most important chemicals used to create Trésor were used in a Kecofa fragrance called Female Treasure. While Trésor retails at about £40, Female Treasure costs about £3.

Such manufactured products are usually covered by trademark and patent laws, but Female Treasure was not an exact copy of the L’Oréal perfume.

In copyright law, however, the standard of proof is lower: all that is required is evidence of imitation — just as a writer might have plagiarised parts of another novel, it was argued that one could plagiarise a smell.

The Dutch Supreme Court agreed with a lower court that Kecofa had breached L’Oréal’s copyright: it will now have to hand over to the French company all profits from Female Treasure — expected to be tens of millions of pounds.

Yesterday copyright lawyers were contemplating a world where tastes, colours and fabrics might all be subjected to copyright. European law is harmonised so British companies, creating anything from curry, to woolly jumpers may claim the protection of copyright.

Chris Forsyth, an intellectual property partner at the law firm Freshfields told The Times: “I am nervous about the ability to define a smell in a sufficiently specific way to prove that it is original. To try and extend copyright to areas which are less definable and very subjective runs the risk of opening the floodgates. Could you copyright a taste or the feel of a particular fabric? That seems inherently unattractive.”

L’Oréal refused to comment. Kecofa is considering taking its case to the European Court of Justice.

Leon Meels, a spokesman for Kecofa, said: “Everybody who knows anything about this thinks it is ridiculous. Where are the boundaries? Are companies going to claim that they have the rights to the taste of vanilla or the smell of lilies? L’Oréal’s real problem with us is that we are offering a product that is too inexpensive and they have to protect their profits.”

A side-effect of seeking copyright approval is that products will be protected from imitators for much longer than is usual under patent law. Copyright can last for 100 years or more while most patents run out after 20 years.

High time to be less sniffy

THE art world smells a rat. It’s not the rotting corpse of one of Damien Hirst’s stuffed mammals but the sickly sweet smell left by the L’Oréal perfume at the centre of the latest aesthetic debate. The company’s copyright victory is likely to send the galleristas into a nose-spin.

It’s about time too. We should be far more generous and less, er, sniffy, in our allocation of that overly mystified word, art. The idea of Britain’s loftiest art critics being let loose on Jade Goody’s new perfume Shh . . . is fragrance to my nose. However, attributing the name of art to everyday objects is hardly novel. Almost a century ago the sculptor Henry Moore was treating old bones as natural sculptures. The Surrealist Marcel Duchamp awarded artistic status to the bicycle wheel, the window frame and his famous urinal. The burghers of Tate Modern paid £22,300 for a tin of faeces by the Italian artist Piero Manzoni. Holy Sh**!, you might say, and you’d be right with that price tag. We are a nation of artists (however challenged) and we should embrace that fact. See the beauty in your wellies. Put your hot-water bottle in a display case. Honour your iPod with an esoteric caption. Just don’t expect me to come and review it.

ALEX O’CONNELL

Law analysis and comment

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