[Scott Warren]

What sort of ownership does a course architect have over their creation?

For instance, if I were rich and crazy enough to buy a plot of land, grade it identically to ANGC (or any course really) and build an exact replica, is there anything that can be done to stop me?

Would I have more of a worry doing it with a living archi's course than, say Dr Mac or Colt?

[Adrian_Stiff]

What sort of ownership does a course architect have over their creation?

For instance, if I were rich and crazy enough to buy a plot of land, grade it identically to ANGC (or any course really) and build an exact replica, is there anything that can be done to stop me?

Would I have more of a worry doing it with a living archi's course than, say Dr Mac or Colt?

Interesting topic Scott, I expect some lawyers will chirp in with the exact right answers, my initial take would be that to copy a course would more be the 'property' of the club itself rather than the architect. My understanding be more the club bought the design so it is their's. Further, I suspect it is very difficult to prove replication of an artistic creation if there are tiny changes. If the replication promoted itself by making reference to another then that may be enough though.
If somebody copied my work (and they have) I would be pleased, I wonder how the likes of TD feel?
There have been copies and those replica courses have asked for permission, I do not know if money changed hands but I think I remember someone refusing their hole to be replicated.
I believe it is possible now with modern GPS equipment coupled with a D6 to very closely produce a golf course like TOC to within say 6 inch contours. I think we ALL use ideas from other courses we have seen, afterall there is not much really new in golf course design, it's just a case of adjusting ideas and principles to newer surroundings.

[BCrosby]

Scott -

I don't have the time to get into it now, but there was a case several years ago that addressed most of the issues you raised. They came up in connection with a "legacy" course that advertised its holes as replications of various famous holes from famous courses. I haven't looked at the case in years, but as I recall the court found that while you could replicate design ideas, you couldn't advertise a hole as a replica of, say, the 12th at ANGC without violating ANGC's rights.

Others may have a better recollection of the case.

Bob 

[Phil_the_Author]

Bob,

Wasn't the issue raised in that case the use of the name ANGC in advertising rather than the design of the hole?

I am under the impression that the term "copyright" specifically refers to the written word; books, articles, poems, songs, etc...

There really isn't a "copyright" or "patent" infringement issue here. Think of it this way; if I had the money I could obtain the design plans for and build another Empire State Building on land that I own. Could I NAME it the Empire State Building? That is where hiring Bob would come in to either sue for using the name or to protect against it if I did...

[BCrosby]

Phil -

Copyright extends to pictoral, graphic, photographic and design expressions. ANGC can have a copyright interest in its holes. It also has an exclusive right to use its own name. IIRC, the case addressed both the copyright in design issues and the right to exploit famous course names, like ANGC or PVGC or Shinnie. The finding turned, I think, on the last issue.

Bob 

[Jeff_Brauer]

Bob,

As I recall it, that case was for Harbor Town and the courts ruled that they could copy hole design ideas, but had to take down the replica of their iconic lighthouse.  I never quite understood that one.

So, to some degree, yes, it appears to be true that you could copy any design idea (Lord knows, we all copy them to a degree) but the problems come in calling it XXX - the sequal or copying anything that would really be unique to them.  That said, the Ike Bridge has been copied, many courses have azaleas and/or pines, etc.  I suppose a famous course could go to court over a lot of things, but common ones like bridges and vegetation would be hard to prove you copied their bridge, and plants are natural.

The issue of who owns a design is not an insignifgant one to gca's.  Standard contracts (if there are such things) typically allow the gca to maintain the rights to the "intellectual property" and plans are considered "instruments of service" rather than the product itself.  I specifically limit the rights of owners to resuse any plan or idea for another project, but retain the right to do it myself. 

Of course, I am worried about two things - first, I would rather get paid again if they build another green to my idea.  Second, there have been some odd duck legal cases where an Owner uses (or reuses) a green plan and the original gca gets sued despite not even being involved with the project just because his name was on the plan and the injured party added them to the lawsuit.

The weirdest one I ever heard of from my E and O insurance agent was an East Coast firm who provided a free green plan in the interview process that included a retaining wall.  They hired a different gca who was cheaper, but told them to use the other firms plan, which they did. However, they didn't engineer the wall and it fell down.  The club sued the gca who did the original concept plan for a faulty design even though they had nothing to do with it, other than drawing a line as an idea on a piece of paper only to have "their" design rejected, at least as far as they knew. 

So, I also put disclaimers in contracts for using plans only for their intended use - concept plans as concepts, construction drawings for construction, and using all plans ONLY for the project under agreement.  I am tempted to send a set of final plans to the owner (which, while I own them, there is some legal mumbo jumbo that grants them the rights to keep a copy for their records) but without my name on them, so that if they get out in the public domain, no one will sue me after building off a crappy Xerox. 

Now, if the course in question ever gets the scrutiny of Merion, it will be harder for some future historians to figure out why no name is on the plans!

Another interesting question - I have heard of a gca threatening to sue over the use of their ideas, esp. when they were produced in a design competiton.  One sent such a letter to my client after I casually told him that the client who hired me DID like some of his routing, and instructed me to use a few of those corridors.  And to think, I was trying to compliment him, as I knew it was tough for him to lose that project to me.

He did NOT put any kind of copyright mark on his plans and thus backed off his claim of copyright protection. 

But I wonder if gca's dead or alive might consider suing other gca's as a revenue source in these tough times?  I think it would be hard to win, but what if I am building a version of CC's semi-famous "toilet seat" green?  Is that closely enough tied to them to give them legal rights to the idea?  How much does it have to change to be an original idea - 5% or so?  What about a Mac Boomerang Green that was fairly distinctive, and with all the books out there now, known as one of his trademarks oddities?  Would I hear from his estate?  Or anyone building a Biarritz, which was clearly a CBM idea and quite identifiable?

I hope those things have passed into the public domain, because versions of them are too cool not to reintroduce to the golfing public who will never get to see the dozen or so originals, either because they lie on private clubs, or have been remodeled out of existence.

[paul cowley]

I've never heard of a 'toilet seat green', but it sounds remarkably similar to a green design I've used on three different courses....one that I call a 3/4 biarittz, where over 75% of the green is connected on the upper level.....you get the picture.

But do I care whether CC and I had a similar idea that was new to each of us and unknown to the other?.....not a bit.

[Jeff_Brauer]

paul,

Yeah, that is your story and you should stick to it. I will testify in court for you pal!

[BCrosby]

Jeff -

Lots of interesting issues. I'll respond in more detail later. Note that copyright does not protect ideas, it only protects specific, tangible expressions of an idea. Thus you have a copyright in your specific design plans for a toilet seat green (btw, you don't need to affix the copyright sign anymore), but you don't thereby get a copyrightable interest in the idea of a toilet seat green.

Paul -

Not to make too fine a distinction, but I'd describe your green design as more like a big one hole privy green. For which your design is copyright protected. So you've got that going for you.

Bob

[Adrian_Stiff]

I think the key word is EXACT. I think to win a copyright case (in the UK) the copying of the artistic creation must be a copy. So by definition a slight deviation is not a copy. It could be a difficult case to prove but by advertising that something is a copy of say the 17th at sawgrass could in theory send yourself straight to jail.

[BCrosby]

Adrian -

Well, sort of. The issue of whether a hole is a copy or something else is a factual issue decided on a case by case basis.

A separate issue is whether you have the right to appropriate the name "TPC Sawgrass" to promote your new hole or course. That's a much clearer call. You'll lose.

Bob

[Jeff_Brauer]

Given natural conditions it would be hard to ever have an exact copy.  And there used to be some definition as to how close things had to be.  When Harrison got sued for "My Sweet Lord" I think there were a few note different than "She's so Fine" but he still lost anyway.

[BCrosby]

Jeff -

Yes, it is very hard to make an exact copy of a golf hole. Which is why copyright issues rarely come up in that context. Copies of photos, poems, prose, pictures are much easier to do precisely, thus the more frequent litigation you get in those contexts. Because of the vagaries specific terrains and locations, true plagarism in golf archtiecture doesn't happen much.

But using the name of a famous course in connection with your "replica" hole can mean trouble. As that recent case showed.

Bob

P.S. The complexity of these issues multiply exponentially when you mix in what you can do on the net. The law hasn't come close to catching up.

[Adrian_Stiff]

BCrosby- Are there any cases of building holes that are too close that have ended up in litigation or is just ones that have replicated and promoted under the 'name'?

[BCrosby]

Adam -

I don't know of any reported cases involving the former scenario. But I haven't looked. It's possible there are some out there.

Bob

[Jay Flemma]

They don't.  I give a yearly lecture on this for the NYS Bar Association.  Stephen Kay gave it with me one year.  One firm tried to protect it under a "sculpture theory" and they were shot down.  Golf course designs are what we call in the industry "scenes a faire."  You cant protect a bunker shape or a dog-leg left or a 400-yard hole, as it would prevent others from reasonably building their course.

Also in the tour 18 case, the only thing the course was liabvle for was TRADEMARK infringement of the lighthouse.  They had to take the lighthouse down.

Besides...you can't make a perfect copy...every course has different altitude, prevailing wind, soil, foliage, flora, etc...any timem someone tries to copy Amen corner, for example, they come woefully short...

[Richard Choi]

It could be a difficult case to prove but by advertising that something is a copy of say the 17th at sawgrass could in theory send yourself straight to jail.

I know your half joking, but this would fall under copyright infringement and would only result in monetary damages. No one is going or would ever go to jail over copyright infringement like this.

[Adrian_Stiff]

It could be a difficult case to prove but by advertising that something is a copy of say the 17th at sawgrass could in theory send yourself straight to jail.

I know your half joking, but this would fall under copyright infringement and would only result in monetary damages. No one is going or would ever go to jail over copyright infringement like this.

Richard - yes my quote 'go to jail' was tongue in cheek 

[Tom_Doak]

Over the years, I've been contacted three or four times by people in the golf business who claim to be "patenting" some innovative new design idea and want to see if I am interested in implementing it [for which, presumably, they would be paid royalties].  They are always so secretive about their brilliant new idea that I can never figure out what the heck they think is so revolutionary, so I just never follow up.

I was curious about that with the "lost MacKenzie" design that Mike is going to build in Texas ... while the design was very interesting, I couldn't figure out the grounds by which David Edel was going to get paid for authorizing its use.  The family in Argentina owned (or sold outright) the original plan, but was the design really theirs or MacKenzie's?

[Davis Wildman]

It is possible with today's 3D Hi-Def laser scanning to accurately-exactly model a hole, the signature design asset, vegetation and all, to design/survey grade accuracy, geo-referenced too. 

While this is an archive level record dataset or 3D As-Built document and produced for owners/members use primarily, it serves as a significant design portfolio record piece of a designer's finest work and I can't help but think how fun it would be to study and compare original designs (hand-drawn or CAD produced), pre-construction to what was finally created in the field...make for a truly interesting design lab study as well as for golf course architectural history and design interests here on GCA..IMHO.

[BCrosby]

TD asks:

"I was curious about that with the "lost MacKenzie" design that Mike is going to build in Texas ... while the design was very interesting, I couldn't figure out the grounds by which David Edel was going to get paid for authorizing its use.  The family in Argentina owned (or sold outright) the original plan, but was the design really theirs or MacKenzie's?"

I'm not a copyright lawyer, but I would guess that MacK's copyright in his drawing (late-1920's?) has expired. Likewise the rights of the family that commissioned it. MacK's famous map of TOC is also probably now in the public domain.

I assume that Edel gets paid on the basis that he has the only existing copy of the plans. If you want to use them you have to go through him. (I would love to see that contract, btw.) I doubt his rights are based in copyright.

Bob   

[Richard Choi]

This is pretty interesting. Here is what I found on-line.

For Architectural works, following copyright durations apply.

Date of Design	Date of Construction	Copyright Status
Prior to 1 Dec. 1990	Not constructed by 31 Dec. 2002	Protected only as plans or drawings
Prior to 1 Dec. 1990	Constructed by 1 Dec. 1990	Protected only as plans or drawings
Prior to 1 Dec. 1990	Constructed between 30 Nov. 1990 and 31 Dec. 2002	Building is protected for 70 years after death of author, or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation17
From 1 Dec. 1990	Immaterial	Building is protected for 70 years after death of author, or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation17

So, if "lost MacKenzie" design was actually built, the copyright does not matter as you can just go copy the holes (as long as you don't copy the original plan). This would also apply to ANGC. The course itself has run out of its copyright so you can copy any holes from any classic golf courses as much as you want without any fear of copyright infringement.

For unpublished works like "lost MacKenzie" design that only exists on paper, whose author passed away before 1939, the copyright that applies is "Life of the author + 70 years". Since MacKenzie passed away in 1934, that means that the copyright of the original plan expired in 2004.

If "Lost MacKenzie" design was published at any point, it would also be public domain at this point because copyright was probably not included when it was published.

[Jay Flemma]

Remember that a golf course is not protected at all...not as a building or a sculpture...so protecting the plans only protects the plans themselves...not the implementation of them.

Thank you Sonny Bono copyright Extension act for the life in being + long period of years language.  Lord knows the world would end if Mickey Mouse became public domain.  You watch...the next time "the mouse" is up against the PD time limit, they'll be back in Congress with gobs of liquid cash for "life in being + 140 years.

The constitution, when drafted, allowed for a "reasonable time" to balance the rights of the copyright owner to receive a reasonable return against the rights of society to access and use...14 years + one renewal of 14 years.  Now...anything created in your life time, is likely not usable by you unless you really outlive the creator.  It's waaaaaaaaay to long.  hence, I try to give Disney as little of my money as possible.

[Forrest Richardson]

One of my favorite quarterly lunches is with Jordan Meschkow, a Patent Attorney and longtime friend. Jordan successfully negotiated a settlement for us a few years ago for a master plan appropriated without our consent. While not a finished golf course, it certainly had golf architectural overtones.

Copyright law permits filing for architectural plans. Golf courses qualify. So, the plans can belong to whomever owns the copyright. In our office, we usually own the designs by way of the plans. The client obviously owns the dirt and the finished course. Our contracts prohibit clients from using our plans to create other courses, but I am not sure how that would ever pan out. Probably not my idea of fun — getting tangled up with a client about a second course.

In a confusing similarity, sculptures are copyrightable...so, it would be interesting to test the waters when it comes to a golf hole. I see no opportunity for a court to consider a series of 18 golf holes any less worthy of sculptural copyright than 18 busts of Anna Nichole Smith.

An interesting copyright case law (with regard to architecture) centers around a situation where a photographer created an image of a famous building and sold posters. The architect of the building claimed foul and said that, in essence, his design for the building was being infringed upon by the photographer. The photographer countered that the sky, lighting and filters of the image all contributed beyond the original architectural design, and I believe the photographer prevailed so long as he did not claim to any ownership of the building design itself.

Golf course designs are protected by (1) copyright [although this is is mostly a formality to protect plans and control their distribution...RTJ2, for example, controls most everything ever drawn for Chambers Bay and will likely cash in on merchandise and licensing for course plans, etc.], (2) trademark [this is Jeff's example of the lighthouse at Harbour Towne...the lighthouse is a 3-dimensional trademark that represents the course and development...McDonalds famous french fry container is also a trademark...as is the familiar chimes of NBC Television...all are rademarks even though they are not traditionally printed in black and white or adorning a can of beans], and (3) Patents, specifically Design Patents [these are the designs applied to useful objects, such as lamps, wallpaper and, yes, even a golf hole. I would submit that, had it not been widely copied, the Redan would qualify as a patent-able design under design patent Law...Design Patents are not as firm as regular patents, but they do have an interesting use in golf. I am surprised not to see more of the Trump, big-destination resorts, etc. use design patent protection....certainly the TPC's 17th is a design patent candidate, but, as it was never filed before disclosure, it is a lost opportunity...however, to confuse matters, a trademark filing for the 17th at TPC would be allowed if it might be proven that the image of the hole is used as a trademark to identify goods and services...which I believe it is.]

Enough. My head hurts. And, we have not even begun to address "Trade Dress"...a term used to describe the overall, often informal look and feel of a company or entity. If someone were to begin making their project look like Pebble Beach Resort, while perhaps not technically using exact trademarks, trade names and hole designs, you can bet that Pebble beach Would try and stop the opportunity to cash in on their good image and brand.

[Tom_Doak]

Forrest:

Interesting examples that you picked.  I know that twenty years ago, when I was going around taking pictures of all the golf courses I saw, both the PGA Tour (for its TPC courses) and the Pebble Beach Company (then the Japanese ownership) insisted that they control ALL photographic images of their golf courses and indeed their properties.  If someone took a picture of the Lone Cypress on the 17-Mile Drive, and tried to sell the image, Pebble Beach was going to sue them!

I found out about the TPC photo ban when I was in Tucson and wanted to take pictures of that course.  The irony was that the Tour had been complaining to GOLF Magazine that they didn't get much attention in the magazine for their courses, but they still refused to change their policy and let me take pictures of one of them!

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