Birdie Bill Would Expand Copyright Protections to Golf Courses
A new bill introduced in Congress would amend federal law to extend copyright protection to golf courses. The bill arrives at a time when golf courses and holes can be replicated with limited legal risk and as golf simulators become more able to replicate the look and feel of the real thing.
U.S. Reps. Brian Fitzpatrick (R-PA) and Jimmy Panetta (D-CA) are cosponsors of H.R. 7228. Dubbed the “Bolstering Intellectual Rights against Digital Infringement Enhancement Act” or the “BIRDIE Act,” the bill was introduced on Feb. 5.
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Copyright law generally furnishes architectural designs and architects with a bevy of protections, including the exclusive right to reproduce a design. Registration with the U.S. Copyright Office isn’t necessary to obtain copyright law protection but is advantageous for pursuing infringement lawsuits. The extent to which an architectural project enjoys copyright law protection depends on the type of project.
At issue with H.R. 722 is the U.S. Code’s wording of copyright protection for architectural works. The Architectural Works Copyright Protection Act of 1990 protects the design of buildings “as embodied in any tangible medium of expression, including a building, architectural plans, or drawings.”
An earlier version of the 1990 legislation also protected “three-dimensional structures,” a phrase that likely would have contemplated golf courses—but also bridges, walkways and other outdoor structures that went further than Congressional members wanted.
In the eyes of its sponsors, H.R. 722 would attempt to modernize copyright law as it pertains to golf courses.
“Each artist, creator, or designer deserves the full protection of our copyright law, and golf course architects should be no different,” Fitzpatrick told Sportico. “Piracy and unauthorized replication of golf course designs in digital or virtual simulations threaten the livelihoods of the profession.”
The adequacy of intellectual property laws to protect courses has long attracted critique in legal scholarship. In a 1997 article titled, “Tee’d Off—Golf Course Designers Score Double Bogey in Search for Protection of Their Hole Designs,” Robert Howell argued there are “little or no protective mechanisms” to prevent the “pirating of golf hole designs from occurring.”
H.R. 7228 would alter the copyright statute to explicitly include “the design of a course on which golf is played”—except for miniature golf—”as embodied in any tangible medium of expression, including an architectural plan or drawing.” The bill further protects specific characteristics of golf courses including irrigation systems; landscaping; paths; golf greens; tees; practice facilities; bunkers; lakes; and topographic features.
As Fitzpatrick notes, golf courses have long been on the short end of the intellectual property stick.
“Other aspects of the game like golf balls, golf clubs and golf attire receive some form of intellectual property protection,” Fitzpatrick said. The congressman insists “this bipartisan legislation will provide legal parity between structural architects and golf course architects and ensure these hardworking professionals are justly compensated for their artistic ingenuity.”
H.R. 7228 would apply only to a “work created” on or after Dec. 1, 1990, or “work that was unconstructed and embodied in unpublished plans or drawings” on Dec. 1, 1990. Many of the courses used by professional golfers were built before 1990, though some older courses have made design changes that could gain protection should H.R. 7228 become law.
Copyright protection for golf courses has played a role in litigations. In the 1990s, the owners of Pebble Beach, Pinehurst and Sea Pines sued Tour 18, a company that operates replica golf courses, for copyright, trademark and trade dress infringement and other claims. But Tour 18 prevailed. A federal judge in Texas noted the defendant purchased and used the course maps before Pebble Beach established copyrights.
On appeal, the U.S. Court of Appeals for the Fifth Circuit reasoned consumers were unlikely to be confused by the replica courses so long as the defendant made clear the courses were copied. There is a long-standing industry for replica golf courses in the U.S.
A more recent trend in copying golf courses and holes is “virtual” recreations, a clear target of H.R. 7228. Copyright law protection of digital recreations is complicated by whether a use is transformed, a factor that makes recreation more likely to be found lawful. Playing virtual golf and real golf both involve “playing golf” but are (obviously) different in a lot of ways. Varying forms of use has been a key issue in copyright litigations involving video game depictions of NBA players’ and WWE wrestlers’ tattoos.
Expect pushback from some in the copyright community to H.R. 7228. Golf courses that are digitally recreated without permission could arguably turn to other intellectual property and privacy laws. A bill designed to benefit golf courses could also be portrayed as advancing the interests of the well-to-do at a time when Congress has other priorities.
Although H.R. 7228’s sponsors are from different political parties—a positive attribute in a closely-divided Congress—the legislative process tends to slow down during an election year. At a minimum, though, the bill raises the issue of golf course protections at a time of technological change.
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