IP Draughts spent the day yesterday at Greenwich Park, watching the British dressage competitors achieve Olympic gold and bronze medals. It was a brilliant day, in many ways.
One of many striking aspects was seeing the large teams of support staff – security screening from the Royal Navy, police (a surprising number carrying rifles – do I mean rifles? automatics? big guns on straps around their necks, anyway) and hundreds of civilians in Olympic uniforms, pointing the way, selling “treats”, handing out schedules of riders, and generally being helpful. All of them were trying their best to make the event as enjoyable as possible for the spectators. If only Heathrow Terminal 5 could be run so well…
An enterprise so vast requires large numbers of contracts to be put in place. Much press attention has been given to the payment of £1 to Paul McCartney and other performers at the opening ceremony, even though it was explained to the press that this was just a formality to make the contracts with performers binding. Clearly members of the Fourth Estate were not familiar with the requirement for consideration in contracts made under English law.
IP Draughts’ curiosity got the better of him. Is it possible to find these contracts on the internet? How well written are they?
The first contract that revealed itself was one for contractors supplying goods or services to the Games. It includes the following terms:
The Supplier hereby unconditionally and irrevocably …grants and assigns to LOCOG with full title guarantee the entire right, title and interest (whether vested, contingent or future), including all Intellectual Property Rights, present and (to the extent permitted by law) future, in and to the Materials to hold the same to LOCOG absolutely and throughout the world for the full period during which such rights subsist (including all renewals, revivals, reversions and extensions of the same) and thereafter (to the fullest extent possible) in perpetuity;
Materials are defined as follows:
Materials means all materials and works (in whatever form, including text, visual materials, information and software), or part of the same, created by or for the Supplier as part of or in connection with the provision of the Supplies (excluding materials or works, or part of the same, comprising Intellectual Property Rights subsisting before the date of this Contract and developed independently of the Supplier’s obligations under this Contract);
In principle, these terms are understandable where, for example, a designer produces a programme for an event, and LOCOG (the governing committee of the London Games) wishes to own any IP in the design of the programme. But, boy, does the assignment clause use a lot of long words.
How Kit Kats might have looked at the 1948 London Olympics
On the other hand, if I supply some goods for the Games (key rings, say, or KitKats), is it right that LOCOG should own all the IP in the goods (leaving aside the special case of Olympic symbols and the like)? Sure, the definition of Materials excludes pre-existing IP, but should new IP relating to KitKats, developed while fulfilling an order from LOCOG, automatically be owned by LOCOG? I ha’e me doots.
IP Draughts has not been able to find on the internet a copy of any performer’s agreement or similar (eg non-disclosure agreement) for the Opening Ceremony. However, he has found an agreement (called a Contributor Consent Form) that was intended to be signed by people who were selected to carry the Olympic torch in its journey around the UK. Readers will note that this agreement does not include a £1 consideration, but the drafter was clearly exercised about the question of consideration when he or she wrote:
…in return for LOCOG’s facilitating your contribution and meeting various production costs (together, collectively the Consideration, whose sufficiency you hereby acknowledge), you irrevocably and unconditionally agree with LOCOG as follows:
This does appear to IP Draughts to be a case of scratching around for consideration, if not scraping the barrel. It is not clear to IP Draughts why the drafter required an acknowledgement of sufficiency.
Excuse me, sir, is that some IP you’re generating? Don’t forget to assign it to LOCOG!
The Contributor Consent Form also requires an assignment of IP generated while taking part in the torch relay. Much of the wording is familiar from the supplier contract mentioned above. In this case, the assignment includes:
all ideas, works, materials and/or other products (of any kind and in whatever form) created by or for you as part of or in connection with your contribution to the Relay.
IP Draughts is trying to imagine what ideas might be generated while running a stage of the Olympic torch relay, for which LOCOG might seek ownership of any resulting IP. The Ministry of Silly Walks springs to mind.
It will be interesting to see if any litigation arises under LOCOG contracts and if the outcome of that litigation hinges on the terms of these clauses, or alternatively whether the IP terms and references to consideration should be viewed as legalistic overkill.