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News that the Olympic organising committee, Locog, has settled with design team Atopia comes after a year of top-secret meetings. It followed the Guardian's reports of similarities between Thomas Heatherwick's cauldron and Atopia's pavilion design, which the latter developed at Locog's invitation between 2006 and 2008.
The settlement binds Atopia with a gagging clause, so little is known about the legal proceedings. But we do know the settlement acknowledges that the practice developed five key concepts, all of which featured in the final cauldron design.
The settlement marks an important step in the murky world of intellectual property (IP) and confidentiality in the process of tendering for design work, which all too often leaves designers with little recourse for legal action when their ideas are taken up without credit.
“This is a very unusual set of circumstances,” says trademark lawyer Robert Cumming, senior associate at Appleyard Lees in Leeds. “These things never usually come to light – either because of non-disclosure agreements, or because the offended party doesn't have the resources [for legal action], or they can't build a strong case. So there's not a lot of case law out there.” The protection of ideas alone, he adds, is usually not covered by IP rights, which instead protect the specific expression or embodiment of an idea. And even then, the case would rest on proof of derivation, based on original sketches and drawings. (In the case of the Olympic cauldron, most sketches have been shredded on the grounds of secrecy in the run-up to London 2012.)
“It's very hard to prove when ideas have been assimilated,” says Alastair Cotton, a partner at the London legal firm Kerman & Co who specialises in major sporting events and has represented other Olympic committees in the past. “This series of events is highly unusual. There have probably only been three reported cases that are vaguely similar to this in the last 50 years.”
Cotton mentions the landmark case of Seager v Copydex in 1967, when an idea for a carpet-grip design that was discussed in confidence during a meeting with a manufacturer was later produced without the designer's knowledge. The court held that the company was in breach of confidence, but had acted honestly, ruling that it was a case of “subconscious copying”.
Then there's the unsuccessful 1996 claim in De Maudsley v Palumbo over the idea for the Ministry of Sound nightclub. The claimant argued that the defendant, who ran the club, had appropriated his ideas for a new type of dance club after the claimant mentioned them at a dinner party. The case rested on five supposedly novel features of the new space, including that it would be very large and fitted out in hi-tech industrial warehouse style, and employ top-quality disc jockeys. The judge, unsurprisingly, countered that that the ideas were “individually too vague” and could not be protected by law, adding that disclosing the idea at a social event did not suggest an obligation of confidence.
Further cases are mostly to be found in the television industry, where there have been various claims that TV formats have been copied from confidential pitches. They date back to 1983, with the successful case of Fraser v Thames TV about the origins of the concept for what became the series Rock Follies. More recently, such attempts have been met with less success. In this year's case of Wade v Sky, the claimant had submitted a proposal for a music talent show, called The Real Deal, to the defendant. The defendant rejected the pitch, but went on to make a show entitled Must Be the Music, which shared some features of the original pitch. None of these were deemed individually original, nor, the judge ruled, did it seem likely they had been derived from the claimant's pitch.
So how does the case of the Olympic cauldron weigh up in this context? "If you read the statement issued by Locog's liquidators, you would hardly know what they were on about,” says Robin Jacob, professor of intellectual property at University College London and former court of appeal judge. “It is carefully worded not to admit any liability, as is always the case with out-of-court settlements.”
Jacob has a long career of defending and presiding over such cases, having successfully defended the composer Vangelis against claims that he copied the Chariots of Fire theme tune in 1987. Four years later, he presided over the case of a gap-year student who had sued architect Rem Koolhaas over accusations that the design of the Rotterdam Kunsthal was based on his final-year student project. “It was an outrageous case,” says Jacob, who judged in Koolhaas's favour. “The building looked nothing like the student's design. It was a complete delusion, just pure fantasy.” The cauldron case, Jacob says, is “shrouded in mystery”.
Atopia, for their part, says it was invited to present its proposal to a small committee in the early stages of Locog's formation for London 2012, comprising director Bill Morris, head of new media Alex Balfour, head of sustainability David Stubbs and design principal Kevin Owens. Atopia says the head of ceremonies, Martin Green, who went on to brief Danny Boyle and Thomas Heatherwick, was copied in and briefed following the meeting, but did not attend the presentation. (Heatherwick says he only learned of the settlement today and adds: "As we’ve said before, the design process was categorically our own, from start to finish.")
Green is adamant their work did not influence the following design development. “Neither work by Atopia or anyone else played any part in the briefing I gave to Danny Boyle and Thomas Heatherwick at the beginning of the process to create the Olympic and Paralympic Cauldron,” he says. “The design for the cauldron came about solely from the creative conversations between Danny, Thomas and myself. Danny and Thomas have far too much integrity and talent to require using other people’s ideas in this way.”
Behind the Olympic cauldron: Atopia's five design features
As part of a statement issued by Locog, the London 2012 organising committee recognised the contribution of Atopia. The design firm's Jane Harrison and David Turnbull have outlined the five concepts for a design scenario that it had submitted:
1. The live-time construction of the pavilion in the opening ceremony for the Games.
2. The pavilion being made from 200-plus flower-shaped forms, one for each of the participating nations.
3. The flower-shaped forms being brought into the opening ceremony by "bearers" from each participating nations team.
4. As part of the ceremony, the bearers passed each flower-shaped form to the "next generation" to be "planted" and "deployed" as a pavilion.
5. After the Games the flower-shaped forms should be returned to the participating nations.
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