Legal Protection for Golf Course Designs

[Max Sternberg]

I am working on a law school seminar paper on the options for legal protection of golf course designs and design elements, particularly under trade dress, copyright, and possibly right of publicity.


Other than the Tour 18 case, I was wondering if anyone had any thoughts on the topic or suggestions as to resources that might be worth looking into?


Thanks in advance to anyone who can help out.

[Steve_ Shaffer]

Max,


Here's a good resource:




www.golfdisputeresolution.com

[Mike Sweeney]

What owner group in the world would allow any "legal protection" of their golf course to a contractor?


Let's start with Tom Doak at Beechtree. The owner(s) decided to plow the course under to make more money with houses. Why would they give ANY legal status to Tom Doak who is a hired contractor?


Sure, maybe if Tom gives me exclusive rights to market "Doak Links", I would consider it, but I am guessing Tom would not do anything exclusively for another 10 or 15 years.


"Golf Course Architect" is NOT a licensed occupation. What is the legal precedent?


Could it be written into a land grant course such as Yale where the land was donated by the Tompkins Family? Yes, but that could be written into the donation and then it would be up to the owner/trustee to maintain it.


The last thing in the world we need is a legislative body deciding "Legal Protection for Golf Course Designs". Cart paths will be written into law!

[Steve_ Shaffer]

Here's a good case:


http://www.golfclubatlas.com/forum/index.php/topic,61439.0.html

[John Kavanaugh]

I had understood that the Red Course at Dismal River was not to be called the "D" word. I wonder if Doak had legal protection from it being marketed as such.

[Max Sternberg]

Thank you for the responses.


Just to clarify, I am focusing more on protecting designs/elements from unauthorized copying, not renovation/destruction (as could possibly be accomplished through moral rights).


I agree that no owner would ever want to be beholden to the architect to approve changes in how their land is being used. But I do think there are many design contractors with enough leverage to get the owner to waive his/her right to use the design on another site w/o approval or to allow someone else to do it for them.

[BHoover]

It's been 11 years since I took my copyright law class in law school. But I would assume that the architect's course design, both the design plans and the expression of routing, hole design and placement of features, would be subject to copyright protection, at a minimum. Copyright law protects the expression of an idea, not the ideas themselves. So how the architect presents a design, not the design features/ideas themselves, would be entitled to copyright protection.

Trademark and trade dress rights may apply to the architect's brand name. So whether an architect's name can be attributed to a design or course may involve trademark rights.

Whether those copyright and/or trademark rights remain with the architect or the client, however, is a matter of contractual negotiation--for example, the architect could assign certain or all of those rights to the client in the engagement agreement.

[Mike Sweeney]

Just to clarify, I am focusing more on protecting designs/elements from unauthorized copying, not renovation/destruction (as could possibly be accomplished through moral rights).

You have just destroyed 30-50% of the C&C and Doak work over the last 10 years:

[Tom_Doak]

I had understood that the Red Course at Dismal River was not to be called the "D" word. I wonder if Doak had legal protection from it being marketed as such.

I've specified in all my contracts [well, the last 20] that the course NOT be named after me.  A client would owe me more money if they did so, but they could only do so with my permission, and I've not granted that permission.  That's all just because I don't want every course I do to inevitably be named "the Doak course".  I would prefer they sink or swim on their own merits.

[Sean_A]

So how the architect presents a design, not the design features/ideas themselves, would be entitled to copyright protection.

What does this mean?

Ciao

[John Kavanaugh]

I had understood that the Red Course at Dismal River was not to be called the "D" word. I wonder if Doak had legal protection from it being marketed as such.

I've specified in all my contracts [well, the last 20] that the course NOT be named after me.  A client would owe me more money if they did so, but they could only do so with my permission, and I've not granted that permission.  That's all just because I don't want every course I do to inevitably be named "the Doak course".  I would prefer they sink or swim on their own merits.

Golfweek has seemed to take that liberty as you see here in their description of the Red course.


26. (23) Dismal River Club (Doak), 7.63

Have you requested that they replace (Doak) with (Red)?

[BHoover]

Sean,
Although I wanted to be one, I'm not a copyright lawyer (I got pulled into tax law instead). So my explanation is based on a copyright law class 11 years ago in law school. That said, copyright law, in the US, protects "original works of authorship," fixed in a tangible medium including literary, dramatic, musical, artistic, and other intellectual works.

Ideas themselves are not protected. According to the Copyright Act of 1976, in no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

For example, a paper describing a political theory is copyrightable. The paper is the expression of the author's ideas about the political theory. But the theory itself is just an idea, and is not copyrightable. Another author is free to describe the same theory in their own words without infringing on the original author's copyright.

An artist's particular sculpture is protected by copyright. What's not protected is the right to use a particular material or subject matter. In music, copyright protection extends to the publication of the song or musical arrangement and the sound recording. The use of a particular note or instrument to produce a particular sound is not protected because that's an idea. But how the musician arranges the notes, timing, lyrics, etc. are protected. The copyright protects the authorship of some intellectual "thing".

Of course, like all areas of law, there are limitations, exceptions, etc. for permitted uses of copyrighted works.

Now I'll wait for a copyright lawyer to correct me...

[Max Sternberg]

Sean and Brian,


So the idea/expression distinction is definitely part of the equation and that is part of the argument I am making in the paper (I think some courts/academics get it wrong). If golf courses were given the same level of protection as buildings, this would still prevent a designer from, for example, obtaining copyright protection for the "idea" of a redan, although they could conceivably receive protection for the particular way they built it (the 'expression')


The more problematic part for golf course designs is that they are considered functional. This was for a long time the same problem that architects faced and it prevented copyright protection from extending beyond the plans and over the actual product because, prior to 1990, architects would have had to rely on the protection for "graphic, pictorial, or sculptural" works, which did not apply to functional aspects of the work. Even if part of the design could be considered aesthetic, courts typically treat that as inseparable from the functional aspects of a design and therefore the entire thing is left unprotected. This separability issue is another part of the equation I do not think I agree with and want to dig into in the paper.

[Tom Allen]

Not a copyright lawyer, either, but Brian has given a nice general summary here.

Also, someone mentioned that because golf course architect was not a licensed profession, there might not be a legal precedent for protecting their work.  To the best of my understanding, a licensed profession is not a legal requirement.

Take an artist, for example.  An artist (or photographer, or writer) might create a work, and decide to copyright it.  Licensing of the profession is not a factor as to whether he or she can copyright that work.

Not sure if my info helps you any.  You seem to have a good grasp of the issues already.

[BHoover]

Copyright protection also is available regardless of whether a work is registered with the US Copyright Office. But I recall that registration does provide constructive notice of copyright protection, among other things (including the applicability of enhanced statutory damages in case of infringement).

I believe similar rules apply to trademark protection. But I don't remember my trademark law class as well as I do the copyright class. Trademark law is complicated further by the federal and various state laws that may apply.

[Sean_A]

Sean,
Although I wanted to be one, I'm not a copyright lawyer (I got pulled into tax law instead). So my explanation is based on a copyright law class 11 years ago in law school. That said, copyright law, in the US, protects "original works of authorship," fixed in a tangible medium including literary, dramatic, musical, artistic, and other intellectual works.

Ideas themselves are not protected. According to the Copyright Act of 1976, in no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

For example, a paper describing a political theory is copyrightable. The paper is the expression of the author's ideas about the political theory. But the theory itself is just an idea, and is not copyrightable. Another author is free to describe the same theory in their own words without infringing on the original author's copyright.

An artist's particular sculpture is protected by copyright. What's not protected is the right to use a particular material or subject matter. In music, copyright protection extends to the publication of the song or musical arrangement and the sound recording. The use of a particular note or instrument to produce a particular sound is not protected because that's an idea. But how the musician arranges the notes, timing, lyrics, etc. are protected. The copyright protects the authorship of some intellectual "thing".

Of course, like all areas of law, there are limitations, exceptions, etc. for permitted uses of copyrighted works.

Now I'll wait for a copyright lawyer to correct me...

Brian


Thanks.  But I gotta say, archies are in trouble if "expressions of design" are copyrighted in anything like the same way the written word is protected.  I see holes all the time which are obviously very, very similar to other holes.  I spose the archie has to show the rip-off job was in fact ripped from him and not just generally ripped like what happens with music?


Ciao 

[BHoover]

If a design is protected by copyright or trademark, and infringement occurs, then the holder of the right is generally entitled to sue for infringement. The copyright statute, for example, provides for certain remedies (such as injunctions) and monetary damages (actual damages and profits or statutory damages) as well as attorney's fees. 

I'm not saying it's an easy or quick process, but protection is available. Case law is full of examples of infringement cases involving music, software, publishing, etc.

[Frank M]

What a thread.

[BHoover]

This concept as it applies to design elements of a golf hole/features/elements, etc., as is being described in this thread is ridiculous and a sad sad sign of our times. 

The whole idea makes me cringe. Thankfully, I don't believe anything like this would ever hold up in a court of law except for very very rare instances.

And now I will never read through this thread again.

Thanks for reading...

[Frank M]

Thanks for reading...

No problem.

Woops...darn 

[Thomas Dai]

Wouldn't there be different copyright/trademark/IPR regulations (or whatever term you wish to use in this discussion) in different countries and wouldn't such be an important aspect given the international nature of the business? And not in relation to just clients-architects either, what about irrigation system design, and given the nature of work on the ground, shapers etc?

On a somewhat related subject - changes to existing courses - I believe that the contract for the first course at the Emirates club in Dubai was written such that no changes to the course could be made for 'x' number of years without the architects (Karl Litten) agreement. Does this happen frequently or rarely?

Atb

PS - nice stance on reverve ego by TD in not wanting his surname used in relation to his courses. I imagine rather an unusual stance in a business that appears to be pretty ego/vanity driven

[Max Sternberg]

So to reframe the question: Say someone decides to take the "tribute" course a step further and built a course consisting of C&C's 18 best holes (similar to a "Bear's Best" concept). They do not obtain any approval and only use C&C's name to describe the genesis of the designs (probably fair use for trademark purposes).


Under this hypothetical, do C&C have any legal options? Should they?

[BHoover]

Sounds like a good hypothetical for your trademark class final exam.

I think they may have something in terms of unauthorized use of their brand name. But I'm not sure what else they might be able to claim in this scenario. However, as I've stated in prior posts, I'm not an expert in this area of law (or, arguably, any other area!).

[David_Moorhead]

I wish my law school exams were this interesting.  In the latest hypothetical, I'd be inclined to focus initially on the right of publicity issue.  It might offer some protection as to the use of their names.  As for fair use, it'd be interesting to analyze whether the use exceeded the scope of the nominative fair use exception.  Certainly seems like there are ways it could, but the replica course would likely push close to the limit...