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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Pearce v. Ove Arup Partnership Ltd & Ors [2001] EWHC Ch 455 (2nd November, 2001) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2001/455.html Cite as: [2001] EWHC Ch 455 |
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IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Case No: HC 1996 06040 Royal Courts of Justice Strand, London, WC2A 2LL | ||
B e f o r e :
____________________
Gareth Pearce Claimant - and - (1) Ove Arup Partnership Ltd
(2) Remment Lucas Koolhaas (sued as Rem Koolhaas)
(3) Office for Metropolitan Architecture (OMA) Stedebouw BV (sued as Office for Metropolitan Architecture)
(4) City of RotterdamDefendants
Mr Andrew Waugh QC and Mr Richard Hacon (instructed by Ashurst Morris Crisp) for the second and third defendants
____________________
Crown Copyright ©
____________________
Jacob J
(a) whether copyright and/or moral rights subsist in the Docklands Plans as original artistic works pursuant to Dutch law;(b) if yes to (a), whether the Claimant was the author of the Docklands Plans;
(c) if yes to (a) and (b) whether the Kunsthal, and/or the design drawings for the Kunsthal (or any of them) infringe the Claimant's copyright in his Docklands Plans, or infringe any of the Claimants' moral rights subsisting in the Docklands Plans, pursuant to Dutch law.
"I was astonished how he could deal with so many people. I cannot prove how much he was involved or how seriously or how he defined these projects, but I was astonished that he had a series of meetings every day from (I do not know) 9 o'clock to 5 o'clock or, sometimes 8.00. I asked Rem, "How do you deal with it?" He answered me; "It is like playing chess with 20 people at the same time. You make one move and you leave other people to think and you go to another table and another table." That is how he did it. It is unbelievable to deal with so many people but he was doing it and that answer explains maybe somehow. I do not think I can do it but I think he was doing it."
"Yes, I think this is a letterhead that we had. What is very important to say is that Mr Zenghelis and myself remained on friendly terms at least until 1987, and that we had worked together on the development of what now could be called a brand, B-R-A-N-D, a name in architecture and that I was also, when I was in London, occasionally kind of looking at the work they were producing as a kind of friend and advisor. So there was no reason, strictly speaking, to take my name off there."
"I am very sorry that our collaboration reached such an unfortunate end. However your complaints don't seem to be very reasonable: Our arrangement was that you would build a model for the lump sum of £600. You had sufficient time and opportunity to study the building in question before you decided to take this job and you knew the standard of detail involved in a OMA-model from previous work at the parc Cevennes-scheme. I did allow you to work flexible hours according to your own pace but we agreed that the work should be concluded by Christmas at the latest. This was in mid-October 86. When you walked out of the job by the end of January 87 the model was not complete. And this is due to the fact that your work hours have been very erratic, your methods inefficient. On top of that we had to find out, that the standard of your work was far less than average as we tried to assemble the pieces made by you: Nothing fit together, there were endless inaccuracies and it took a team of three two weeks just to make good what was supposed to be ready to be mounted together.
We would have all reason not to pay you the agreed fee since you broke the agreement and we had to employ extra help to finish a model which due to your incompetence turned out to be much less satisfactory than anticipated. However, I know that you depend on the money and therefore please return the enclosed invoice with your signature and the office key and I will send you a cheque. The amount you charged for your expenses you find enclosed. Again I would like to emphasise my regrets, that this cordial collaboration had to come to such an end. But it is obvious that due to reasons stated above and also due to your very unreasonable and arrogant behaviour we are not interested in any further help from you which you generously offer in your letter."
"A. This is an absolute lie. I was never asked to leave at all. That is absolutely a lie. I feel absolutely furious about that.Q. Mr Wall is going to come. I imagine he is going to say it is true, but I want to put it to you so that --
A. I am telling you that he is a bare-faced liar - a bare-faced liar. I was never asked to leave."
In the end Mr Wall could not remember whether Mr Pearce had been asked to leave or had refused to come back. It does not really matter. What matters is his over-emotional reaction to this entirely peripheral point.
"As a tutor he is very good, but as a teacher I do not think he has anything to teach, and they are two different roles".
"A tutor is someone who encourages you. A teacher is someone who actually teaches you something. I had a great deal of encouragement from Mr Wall, but he did not actually teach me anything."
"During that year [i.e. Mr Pearce's final year at the AA] I enjoyed contact with you much more than the previous spell had permitted. I reap the reward daily of the thorough investigative approach to design you imparted through your teaching."
"One particular day when Mr Koolhaas was upstairs in the OMA London offices, Alex Wall came downstairs and told me Mr Koolhaas wanted to see me. This was after I had left my Docklands plans at OMA, as described above. I went upstairs, and Mr Koolhaas showed me the plans for his competition design. He asked me what I thought of them. I made a negative comment, and he seemed angry at what I had said. I then returned to my work downstairs. This was the only occasion on which I actually met Mr Koolhaas."
"I happened, by chance, to have sight of the Kunsthal and was immediately struck by the striking similarities between it and my Docklands Project. What particularly struck me was the use of the slab as a vertical element on a horizontal podium. This had been an architectural design feature that appeared during the 1960's. I had used this feature in the Docklands Project as a return to investigating if there was anything of value left in modernism."
"The difference between the 3D and 2D is like in music, the difference between a musical note and the actual music. What we are aiming at is what we are going to have in 3D. However that is very vague and we cannot grasp it so he used other material. So he presented his model. It is super important to make the model and to judge it: to discuss if it is right or not or "It should be more like this". That process is the most creative, I think. Of course, to make the model we need to make some kind of drawing hoping that this is what we want. Rem did not make any precise drawing but does not mean that Rem did not have creative input. He is the author of the building and that is a different story."
"In order to understand a design as complex as the Kunsthal's I think it is necessary to conceive the building, and in particular its interior space, in three dimensions. The building was from the outset designed and conceived by me as a volume and I cannot imagine, looking at the final design, how it could have been created otherwise. This is important since the Kunsthal is to be distinguished from, for example, a typical modernist office tower, which might be seen primarily as a superposition of repetitive floor plans."
He added:
"It may well be difficult, especially for a person not trained as an architect, to gain a proper understanding of the Kunsthal's complex internal space without actually visiting and walking through and around the building."
(1) the dyke/park ramp;
(2) the auditorium ramp;
(3) the roof garden ramp.
All three ramps are of fixed cross-section - there is no triangular widening out which is the key feature of Mr Pearce's ramps and design. The dyke/park ramp runs over a service road running along the base of the dyke. The road runs under the building and was a pre-existing feature which had to be allowed for in the design. By putting it under the ramp and building, Mr Koolhaas has effectively "buried" it. The auditorium ramp is the rake of the auditorium. It is adjacent and parallel to the dyke/park ramp but slopes the other way from the first floor down to the road. They are at the same height halfway up the dyke/park ramp. It is at that point that one enters the Kunsthal, into the auditorium. Finally the roof garden ramp lies above the dyke/park ramp but at an angle so that it forms a long parallelogram.
"The series begins with photographs of the exterior of the building taken from the dike, showing the pedestal and the slab. The reader is then taken to the ramp which dissects the building and which also serves as its entry point. The first ramp, which slopes from the dike down to the park, is divided by a glass wall such that it serves as an external connecting passage between the park and dike, an entrance to the building and an internal space. Walking from the dike down the external walkway towards the park, at about its mid-point one finds (on the left) the entrance I have mentioned. Upon entering one immediately confronts an auditorium. This auditorium, for functional reasons (i.e. so that audience gets unobstructed views), is also set on a ramp, but this time sloping in the opposite direction to the external walkway. If one walks down this second ramp (keeping to the left of the seats in the auditorium), turns left at the bottom, walks a small distance and, turning left again, goes down a small flight of steps, one comes to a hall which faces the park. This lower hall has a "forest" of five columns. Walking through the lower hall towards the park and turning left again at the end (i.e. continuing in a circular route through the building) one rediscovers the initial ramp. Walking back up the ramp towards the dike, this time on the inside of the glass wall, and turning left at the top, a second, brighter hall is reached. This hall faces and is roughly on the same level as the dike. Walking through the hall back towards the park, keep going left and exiting under a suspended "balcony", a third ramp is reached just before an entrance to the auditorium. This ramp is the "roof" of the first ramp and is set diagonally to the first ramp, permitting light to enter the external passageway. Walking up this third ramp and turning right half-way up one emerges on a platform that protrudes into the third hall. The third hall, which is lower, more intimate and without daylight, connects to the suspended "balcony" over the second hall. Walking further upwards over the third ramp one accesses the sloping roof garden."
"My claim arises out of the manner in which I believe my plans were copied, namely by dyeline copying, photocopying, simple tracing or possibly electronic scanning. All of these processes would result in the reproduction of my plans as graphic works. The copied plans would then provide a basis for a "cutting and pasting" operation, in which modifications could be made by moving features or elements of my plans. The use of this technique is, I believe, the most likely explanation for the striking and exact similarities between both major and minor dimensions in the plans. It is even less likely to be coincidental when the fact that the two sets of drawings are at different scales is taken into account."
And:
"I emphasise that my complaint is of copying my plans as graphic works. The fact that the dimensions taken have ultimately had different functions in the final design is therefore irrelevant."
"The 4 columns are in the same position as the pool in the Docklands forming the same geometric shape. The position of the columns and pool are in a different position within the overall building: however this is a similarity of dimension."
"What really matters in most cases are the reasons given for the opinion. As a practical matter a well constructed expert's report containing opinion evidence sets out the opinion and the reasons for it. If the reasons stand up, the opinion does, if not, not."
(a) Notwithstanding the seriousness of the allegation, he did not visit the Kunsthal before making his report yet did not mention that fact in his report. It may be that that there were funding difficulties. But it certainly would have been fairer to say he had not actually seen the Kunsthal. After all it was clear that its design as a 3D building was central to the case.
(b) He never really considered how an architect could actually have carried out the copying alleged, conceptually or by using scissors and paper or in any other way. He mentioned copying by the use of tracing paper but wholly failed to explain how, assuming tracing had been done, the copy could be used to help in the design of the complicated three dimensional Kunsthal structure. Actually he never expressly mentioned cutting and pasting (Mr Pearce's surmise) - nor if that had been done, how it could have helped.
(c) He made errors in relation to both "square" and "triangle" at the site visit and yet maintained his position thereafter.
(d) He never properly read an important document exhibited to his report. One of the similarities he relied upon to indicate copying was the orientation of the two buildings on an uneven level. Yet that was part of the design brief for the Kunsthal. Mr Wilkey exhibited as English translations of this but failed to realise, as is abundantly apparent if you read it, that it pre-dates the Kunsthal.
(e) He showed his biased attitude by looking for triangles in the early stages of the Kunsthal design ("keen to find the triangle" as it was "an element alleged to have been copied"). His keenness resulted in his misreading a drawing and finding a vertical trapezium.
(f) He appeared to think that almost any triangular (or cut off triangular) shape in the Kunsthal must be the result of copying, though the building is full of such shapes:
Q. If it is a triangle shape then it is sufficient for your inference is it?
A. Yes, it is the development of an idea that came from a triangle.
(1) "It is the duty of an expert to help the court on the matters within his expertise
(2) This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid".