"Substantial reproduction" is a question of fact for the court to decide. The proper approach (in English law, at least) is to consider whether a substantial part of the original work has been copied and in considering that to look at the value and originality of the original work. In a software case, for instance, only 2% of the original code had been copied but the court held that that 2% was where the value lay, and that that amounted to repoduction of a substantial part.
Obviously the original landform is not an original work but it is the hole design on that land that can be.
Guys, the tour 18 case said the opposite. You can't copyright a hole design. Its called "scenes a faire." You can't tell people they can't build a 450 yard par four that bends slightly to the right, and has a water hazards all down the left.
If you make even the slightest change, just as in patent law, that de minimus alteration is enough. If we take what forrest and mark said as true, then the tour 18 case would have been decided differently.
You dont use the same standard in every copyright case. Software is not analyzed the same way a song is or the same way a story is.
Someone should go pull the tour 18 case and link to it. That's the present state of the law. People can build all the pastiches they want so ling as they dont infringe the TRADEMARKS of the courses they are "inspired by."
Jay,
I have read the tour 18 decision (thanks for posting it, Steve). Like a good trial lawyer, you have misrepresented it.
First, it's a US case and none of the claimants had a copyright registration. As you know, the USA is the only major jurisdiction to persist with copyright registration. Since none of the claimants had a registration, it doesn't help us as to whether a registration would have been available.
Second, only Pebble appears to have made a copyright claim. That could be for many reasons. When did Ross die? Did Ross assign his copyright to Pinehurst? What was the position with any unregistered copyright at Harbour Town?
Finally, although Pebble appear to have made a copyright claim, it doesn't seem to be addressed, possibly because the trade mark case was decided in their favour.
It's clearly an interesting case, but it is by no means decisive on the question.
One question - do works of architecture qualify for copyright protection in the USA?