Thoughts on the Birdie Bill - HR7228?

[Charlie Goerges]

In terms of question 1, did the owner or architect of Sand Hills copyright their work ?

In the US, you don't have to copyright your work. You own the copyright when you create it. That said, copyright might not even be the right area of intellectual property law. Perhaps trademarks would apply instead, I don't know.


In any event, this is why I'm hoping someone in IP can better explain this to us, because it's still clear as mud.

[Niall C]

Thanks Charlie for helping to lift the fog a little bit. You have however made me think of another question and that is how this US legislation will effect the law in other countries ?


Niall

[Forrest Richardson]

Obviously the sites for golf courses are not ALWAYS site specific. The Lido developed by Keiser is an example. It is a recreation of a classic design in very close detail, even though with some degree of interpretation. Machines today — drones, GPS integration of earthmoving equipment, etc. — can re-create just about anything based on LIDAR (topographic data gathered by drone or ground-based device). The Lido, BTW, would NOT be covered by this change as it is already in the Public Domain...as are classic era courses and those classic (archaic designs) across the British Isles and Ireland.

As I pointed out in the other thread (LIDO), someone today could fly a topo gathering drone over Streamsong and capture all of the details in very high definition — and then take that and re-create one of Streamsong the courses on another piece of land, and unfairly compete with Streamsong. Very likely that would be infringement. Rightly so, Streamsong and perhaps its golf designer (if they shared the rights to the design under the new law) would need to be asked permission, or compensated under a 'right to use' agreement. Just as anyone who writes or performs a song has a right to do if someone wants to recreate and publish the song elsewhere.

Tim — those are elements of a course design...not "course designs". So, such things as bunkers left/right, dog-legs, downhill, uphill, etc., and akin to spires, arches, columns walls, etc. in building architecture. I think you know that, but I'll point it out in case.

It is the sum of parts that defines the Guggenheim in NYC. Not individual surfaces, finishes, themes or parts. Same with a golf course — it is the total of everything — which is a sum that is derived by an exponential equation of individual parts — that defines a golf course. If enough parts are copied to form a new course, and a reasonable person would think it to be a replica, that is what the expansion of the Architectural Clause covers. It also extends to video games and virtual reality. Again, Streamsong should have the option to allow one of its courses to be copied in every detail and appear on a video game. They may well have conditions to how that game portrays their 'work'.

I think our work deserves to be protected from unauthorized duplication. That protection rests with the owners or courses, and depending on our contracts, with the golf architects. It is a changing world — what may have been 'no problem' in the 1980s, 90s, 00s, 10s, etc., is now very much at play. Re-creating the built landscape is now easier than ever. Granted, such dramatic natural terrain as some choice courses could never be copied to any close degree...but then again...perhaps so if we let machines do the work to match captured data.

[Simon Barrington]

Thanks Forrest,


Technology certainly makes it easier to copy IP and creativity, and understand the desire for protection.


Interested to know what the view of a fellow ASGCA member copying another member's design in this method for a modern (post 1990) course might be, would they be in breach of any rules or disrepute clauses in the Association's bylaws etc.?


I think even without that legal protection, reputationally one would be shot if one did that.
So I am not sure the law is really needed in practical terms in the US.

(Look what has been happening in Music Copyright of late, Ed Sheeran was rightly more concerned with the reuptational damage of being accused (wrongly so according to the courts) of copying lyrics/form of a song, rather than creating a stylistic homage. There are only so many notes after all.)

Imitation is the sincerest form of flattery, but it can go too far if a full direct copy.
But the market, I hope, wouldn't accept such work.

Niall asks a very pertinent question, if it becomes statute would it carry across geographies?
Is it more likely to be a risk abroad than domestically?

[Matt Schoolfield]

Obviously the sites for golf courses are not ALWAYS site specific. The Lido developed by Keiser is an example. It is a recreation of a classic design in very close detail, even though with some degree of interpretation. Machines today — drones, GPS integration of earthmoving equipment, etc. — can re-create just about anything based on LIDAR (topographic data gathered by drone or ground-based device). The Lido, BTW, would NOT be covered by this change as it is already in the Public Domain...as are classic era courses and those classic (archaic designs) across the British Isles and Ireland.

Unfortunately I must push back again, because, as with all copyright claims, all you have to do is slightly modify the course to again place recreation under copyright. This means that photos/recreations etc. will be subject to copyright again, if there has been any substantial change. This means that even though Lake Merced GC was founded in 1922, nearly all course photos would again be subject to copyright, because substantial changes were made Gil Hanse and Ress Jones before him.

This means that even though ANGC should be outside of copyright, there would be no way to now go to Augusta now and use LIDAR to capture the course for a recreation, because the course could argue, and I think they would have a reasonable argument, that the changes to the course since 1990 have material architectural merit worthy of this new copyright. I don't doubt they will suddenly become as litigious as Disney.

This means there will likely never be a single course legally reproducible using LIDAR in our lifetimes, period, and pretending there will be is bullshit. Golf courses are living things, they will always need work and changes, so they will always be effectively under copyright.

I know many here in the architectural world here will disagree with me, and that's fine. I still think, you get a xerox print of a piece of art for pennies, yet the world still seeks out the actual pieces of art. We aren't talking about exact copies of courses because the terroir matters with golf courses.  Courses like Tour 18, that let people play poor-at-best representations of golf holes that they would otherwise never have access to is honestly good for golf culture anyway. The fact that people are playing golf in simulators is again a horrible-at-best alternative to a golf course. It's not hurting the golf course architecture industry... because simulated golf courses aren't golf courses. That argument is about money. And the idea that someone would copy Streamsong seems... a bit of a stretch, when courses like August, Pine Valley, or Cypress Point haven't even been attempted, and even if they were, they would be as "genuine" as an unkempt version of Amen corner at a Tour 18 course.

I certainly agree that architects should be provided some level of protection from copycats. The clothing industry has already achieved this, and they have achieved it with Trademarks. Architects can use a trademark, on the tees or on the flag, on the turf, or in things like bridges or structures on the course, to denote that the hole is a genuine article. This is a way to keep the tone of a genuine experience without making the sharing of a photograph of your trip to Augusta suddenly open you up to a lawsuit.

I've said my piece, and I'll try to leave this thread alone from here on out (I doubt the bill is actually going anywhere with only two co-sponsors anyway). I also fully believe that the work I'm trying to do with the wiki will generally be immune from copyright claims as it should be well into the area of fair use... still I'm sure that if I'm actually successful with creating such a database, a law like this would be a huge headache.

I understand perfectly if the architects here disagree with me on this, and I completely respect them in that. My main argument is that US copyright is simply too powerful to be applied to the ground we stand on, not that golf course architecture isn't worthy of any intellectual property rights.

Niall asks a very pertinent question, if it becomes statute would it carry across geographies?
Is it more likely to be a risk abroad than domestically?

I think the applicable treaty is the Bern Convention.

[Kyle Harris]

The "make arguments and see what sticks" temptations are many here.

Green speeds? We acknowledge that the use of hole locations is affected by green speeds. Does a change in green speed and the availability of a hole location make the course different enough?

Climate? Same as above. A course at altitude or in an environment more conducive to firm/fast conditions. A course playable in low light of February. etc.

I think with all the available media out there *about* or *showing* golf courses it'd be a stretch to argue that similarities visually are enough.

The course has to be played. And how it plays is just as big a part of what makes the golf course a golf course as any other feature.

[Forrest Richardson]

Matt — Good points. Of course, you have not spent 3 years working on a major and well-loved course only to have it recreated by an unscrupulous copycat. Not many of us have.

Neither had Michael Graves, Frank Gehry or I M Pei.

The fact that the Architectural Clause has been on the books for 35 years without much to-do sums this up. It’s just an extension of the law that exists.

[Forrest Richardson]

I feel compelled to address the weather, green speeds, etc. Just because rain falls on the Guggenheim — or the floors have been waxed — does not mean the design of the original building cannot be copied unfairly.

[Matt Schoolfield]

The fact that the Architectural Clause has been on the books for 35 years without much to-do sums this up. It’s just an extension of the law that exists.

My concerns are mainly about how necessary… uhh... the ground is, and the implications of that. For example it's illegal to publish photos of the Eiffel Tower taken at night without permission. It is exactly because lighting of the tower is considered an artistic work... and I'm sure it is. I just don't think that the power of copyright should apply to things as banal as taking a photo of a skyline at night... or taking one during a round of golf.

[Matthew Rose]

Well this is interesting. The digital angle makes me wonder what might become of things like Trackman. I'd have a personal stake in that as my current profession is essentially making digital copies of real golf courses.

I'm not familiar with the kind of legal agreements made, but I'm certainly curious about it. As far as I know, most clubs approach us, rather than the other way around. So I assume that is all worked out ahead of time..... I can't imagine it would be much different than video game licensing.

Ironically, the few incidents I know of where a real club did get involved and threatened litigious behaviour involved hobbyists releasing free downloads to internet communities of recreational players. A lot of it simply involves use of the club's real name; sometimes simply rebranding it as an approximation (i.e. "Georgia Pines") is often enough to evade scrutiny.

I wonder if it would work like the music industry, where an architect might be subject to getting royalties or something to that effect.

Interesting rabbit hole that would possibly have ramifications on my line of work....

[Matt_Cohn]

If you can record a cover song, couldn't you build a "cover hole"? Building your own version of 13 at Augusta is almost certainly going to be a stylistic interpretation of the original rather than an exact copy.


Also, who owns the rights—the architect or the course owner? Maybe the architects could be like Taylor Swift and keep their rights to the plans. Gil Hanse could build another Streamsong Black and call it Streamsong Black (Gil's Version). 

[Tom_Doak]

Apologies for the late reply as I saw this thread this morning at the airport and wrote a reply while en route home.  Forrest and Matt [among others] have since covered a lot of my points, but I might as well post what I was thinking before seeing theirs, since I would have if I could have:


I have been playing with new technologies at The Lido and one of my other current projects, and I can testify that the tech threatens to upend the design industry.  With LIDAR data and GPS bulldozers and the willingness to spend $$$ to move dirt, it is now possible to replicate any hole from any other course on a flat site . . . not just similar contours, but the EXACT SAME contours.  The only pieces you can’t reproduce are the background views and the trees, and maybe the playing conditions if you are trying to build a links course in a different climate.

The only reason the creation of The Lido needed an architect or a shaper who knew more than just to follow what’s on his screen, is because we didn’t have such detailed LIDAR data for the original course, and we were adapting Peter Flory’s computer game version of it.  If we had instead wanted to build a replica of The Old Course at St. Andrews, that would have been easier . . . but the only use for an architect as a consultant would have been for quality control.  The design is all in the data . . . millions of data points for each hole.  So, it is EASIER to do an exact reproduction because you don’t have to manipulate the data.  And if you make the contractor go back over the surface thoroughly with less and less tolerance for error, the result is a frighteningly accurate reproduction.

So the reason the Birdie Bill exists, I presume, is because the ASGCA is trying to protect its members’ future opportunities.  It would protect my original work [unless it only applies to ASGCA members, I should probably read the fine print], but I’m not convinced it could do so meaningfully.

For argument, say Forrest really wanted to copy the 4th hole at Barnbougle on one of his courses.  How little would he have to change the hole to get around the law?  Raise the tee three feet in relation to the fairway?  Eliminate one of the bunkers up by the green?  Flip it over so it’s a mirror-image dogleg left?  All of these examples are completed with a couple of mouse clicks.  Paste in the green of the 5th hole to create a hybrid template, like Raynor's Redan par-4?  That’s a little more complicated — stitching together the holes so that it looks seamless, whether in the middle of a hole or in between them, is the hardest piece of the work, because there IS a “seam” and so far nobody has written a “dissolve” program to do it automatically — but it can certainly be done.  So I think the Birdie Bill is just going to legislate how much cutting and pasting will be mandatory.  To stop people from building near clones, you’d really have to ban using the mapping and construction technology, and I doubt a Congressional bill can do that.  Indeed, local governments are the ones who have put all of the LIDAR data for every great golf course into the public domain.

But if they are going to make every golf hole built before 1990 fair game, the bill isn’t going to stop what’s coming, because if I’m picking golf holes to copy, generally the only holes I’m going to pick are (a) some of my own and (b) holes from St. Andrews, Pine Valley, etc.  So from the architect’s point of view, the Birdie Bill could essentially succeed too well . . . there would never be any more copies of 1998 golf holes, because those designs would be protected, and the copy-and-paste contractors would use better templates from the previous generation.



Anyway, that's what I was going to post.  Forrest's arguments make sense [sort of] but raise one question for me:  has the ASGCA already adopted rules that member architects won't copy from others or from the past, and how did they word it?  Did you all go so far as to ban others' templates, or past masters' templates? 

Because it's hard to ask Congress to pass a law for others, that you haven't applied personally.

[Adam Lawrence]

In terms of question 1, did the owner or architect of Sand Hills copyright their work ?

In the US, you don't have to copyright your work. You own the copyright when you create it. That said, copyright might not even be the right area of intellectual property law. Perhaps trademarks would apply instead, I don't know.

In any event, this is why I'm hoping someone in IP can better explain this to us, because it's still clear as mud.

That's true about copyright everywhere I think. If you create something, it is your copyright. It doesn't need to be asserted.

[jeffwarne]

We have a do nothing Congress that chooses to do nothing about a multitude of major issues and THIS is legislation they are considering?

[Forrest Richardson]

A few replies, in no order:

— This is not about HOLES, but golf COURSES. Just as the work of a building design is not about one single room, space or courtyard. It is the SUM of the parts — as a song would be judged in a copyright claim. This is about courses…not holes, features or specific greens

— Despite popular belief, until 1990 the work of building architects was not protected in terms of the FINISHED BUILDING...the only things protected were the PLANS and RENDERINGS...the ARCHITECTURAL CLAUSE rectified that, and ever since BUILDING ARCHITECTS have been able to consider their completed works ('BUILDINGS') protectable

— The BIRDIE ACT simply adds GOLF COURSES to the 1990 act

— This is not an ‘ASGCA’ initiative, although while president, I did get behind the idea because of the future of technology and how the work of ALL designers could be infringed upon…that often gets lost, especially here on GCA…ASGCA undertakes a lot to further the profession of design regardless of being a member or not

— Re: the comment about architects suing architects, that doesn’t seem likely … I think the primary concern is the potential for a project to be funded where a completed course would be copied in great detail, and there is NO designer involved at all — pure copying and taking advantage of hard work and creativity by others

— There is no provision of the Architectural Clause that prohibits taking photos of buildings…this act just adds golf COURSES to the original 1990 act that included buildings

— It is surprising here to not hear more enthusiasm for celebrating the unique work of the golf architect…the fundamental outcome of this act will be to encourage unique works, and to elevate the art so completed courses have the same protection as completed songs, books, movies and architectural works

[Forrest Richardson]

Responding to Tom D —

Courses, not holes or features … or ‘templates’ — I think this is the threshold you need to keep in mind as you consider this.

ASGCA, to my knowledge, has never taken a position on copying, except there has been concern about infringement in the gaming and digital world. We have had members who have had their finished work copied into games. I am not in ASGCA leadership now (no, I was not impeached, just done with my time), but I do not think there is any "protection of members work for the future" except to the point that this change will PROTECT ALL GOLF COURSE DESIGN by making it equal to that of completed buildings.

If there might be one thing here that seems to get lost...this change is to rectify the fact that GOLF COURSES were not a part of the original ARCHITECTURAL CLAUSE, which was an act that clarified (in 1990) the copyright law to INCLUDE COMPLETED BUILDINGS as copyrightable designs (works of art).

[Tom_Doak]

Forrest:  Thanks for the responses.  I don’t really understand the point of copyrighting an entire course, if not to prevent the plagiarism of golf holes, just as you can’t take all the music of someone else’s song or fifty pages out of a copyrighted book without their permission / paying royalties to them.


Luckily for me places like Cape Kidnappers and Rock Creek are not replicable because they’re all about their unique setting.


As for having your work copied into games, I’m part of that club.  If anyone was paid for their inclusion it was my clients.  I will agree with you, that doesn’t seem fair, but I would think it’s a matter of contract law between us and our clients, not always the same regardless of what the contract says.

[Simon Barrington]

deleted (duplicate)

[Simon Barrington]

[size=0px]"I think the applicable treaty is the Bern Convention."[/size]

Not a legal expert at all, but in reading the attached link (it is Wikipedia so please treat with caution) but it seems the Bern Convention (wasn't that a Matt Damon movie?) is really not fit for purpose in regard to digital legislation and is unlikely to be so in the future due to the veto power of the signatories...

So the Act may not be transportable to other jurisdictions, and may not be able to be enforceable in the digital realm anyway?
These are presumably the two key reasons for the Act; to protect finished courses from replication in the physical but more pertinently digital realm, and to prevent international copying (utilising the LIDAR approach Tom was referring to).

Also, given both ASGCA and EIGCA supposedly have clauses on their members preventing them from even criticising the work of other members, how would a member go about challenging another member for copying should it occur? What about if a ASGCA Member copies a non-member?

Forrest is right, we should celebrate and desire protection for the talent and creativity of golf architects, but it is not clear this does that. I feel (possibly naively) that the shame of a golf architect actually copying another's work in full might be career-ending? (that may not be the case for a ditigal copyist though, probably the opposite)

[Stewart Abramson]

Responding to Tom D —

Courses, not holes or features … or ‘templates’ — I think this is the threshold you need to keep in mind as you consider this.

I'm not sure, but this sounds like you're saying someone could copy the front 9 holes, the back 9 holes or any  9 holes of an 18 hole course as that would be copying holes and not a course,  and therefore not be within the scope of the proposed bill.  Such a result wouldn't make sense to me .

[Matt Schoolfield]

The bill is extremely short. It just inserts some text to the existing architectural copyright law.

The law changes from:

An "architectural work" is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.

to:

An "architectural work" is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings, and the design of a course on which golf is played (except for any course on which mini golf, or other similar game, is played) as embodied in any tangible medium of expression, including an architectural plan or drawing.

The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features. In the case of a course on which golf is played, the work also includes any of the following that is part of the course:

(1) Landscaping.

(2) An irrigation system.

(3) A path.

(4) A golf green.

(5) A tee.

(6) A facility in which golf is practiced.

(7) A bunker.

(8.) A lake.

(9) A topographic feature.

[Forrest Richardson]

Stewart — I suppose, but that sounds like copying to me. Maybe think of it as a song. If 50% of a song is an exact copy, my guess is that that the original artist prevails. Copyright law does not settle disputes. It only provides a path for unfair copying to be settled.

One hole. A few features. A theme. Those do not make a complete course. Just as a series of a few notes do not constitute a complete song.

[Matt Schoolfield]

Okay, I know I said I'd leave it alone, but this afternoon I think something unlocked in my brain that might both, explain some of my concerns, and also, potentially, help those looking to protect potential IP. I promise this isn't another rant, and really has nothing to do with whether or not I agree with the legislation.

A lot of this is ideas here I got after reading this article:

Daniel J. Schaeffer, "Not Playing Around: Board Games and Intellectual Property Law," 2015. Published in Landslide, Vol. 7, No. 4, March/April 2015, by the American Bar Association.

I want to talk about the intersection between architecture vs games. I went this direction, because when viewed from an architects point of view, a golf course is a piece of property then everything that Forrest is arguing flows naturally. However, I've always viewed golf on golf courses as a game, similar to pinball, where the golf course is the playfield. If you've read anything I've written, you might notice that I'm commonly making direct comparisons from golf holes to board game and video game mechanics. 

This is where I think things get weird for copyright, and it gets weird in a way that might undermine this law before it's even passed. If you read through that article, you'll notice that many of the copyright lawsuits between different games have been look-and-field similarities and not the actual game mechanics:

Monopoly vs a game called "Anti-Monopoly":

• Anti-Monopoly, Inc. v. Gen. Mills Fun Grp., Inc., 684 F.2d 1316 (9th Cir. 1982), cert. denied, 459 U.S. 1227 (1983). 

PAC-MAN vs a game called "K. C. Munchkin" (via Justia):

• Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607 (7th Cir. 1982)

I know the game we are all playing here is "golf," but I'm not sure that that matters here. I came along to this line of thinking when researching whether or not pinball playfields were copyrightable, because if this a direct parallel between that and golf courses; that is, golf and pinball are always the same "game", but are always played on different playfields. I could not find any cases that went to court, but there does seem to be plenty of evidence where the exact same playfield was published by two different companies, just with different themes. If you can't copyright playfields because they ultimately reduce to game mechanics, I could see it potentially being an issue for this law.

I obviously don't know if there are any implications for this line of inquiry, or if I'm just an idiot who doesn't know what I'm talking about, but when I look at these cases, it comes back to, over and over again that the game's theme matters heavily in these court cases, and not the actual playfields or game boards.

If we pretend there is merit to this line of argument (I'm not saying there is, just humor me please), then it would would really behoove our architects to focus heavily on creating a theme/feel for each golf course if there is any weakness in copyright claims here. Since golf courses are just natural features, I see how this could be challenging, but the more I think about it, I do see themes in the courses I read about. The look-and-feel of a Scottish links seems to be a theme that is replicable, and is done so intentionally. The look-and-field of a desert course seems obvious. I think you could even go as far as the setting, sea side vs parkland, types of trees, color of sand, and maybe even the grass types.

I'm obviously not sure, I've just been too fascinated with this thread, and I thought I'd share what I've been researching.

[Jim O’Kane]

Jim,


It wasn't anything that you said. It was a sarcastic comment on what the congress is proposing.

Ah...gotchya. Thanks for that. I mostly concur on that.

Been away from this board for a little bit -- interested in reading all these other thoughts.

One thought I read before I stepped away, and I concur with who said it way above in this thread, it seems like a logical idea for the simulator space that maybe there should be some copyright implications. For instance, I think that Golden Tee company in Arlington Heights, IL (where I grew up) had to strike a deal with the PGAT to get some of the TPC courses on their newest Golden Tee edition. I guess I can see that logic.

But on the other hand, if I'm a guy like Tom D or Mike Y, whose architectural feats I admire greatly, and say I want to build something like a TOC road hole 17 or some classic template Redan, then the whole concept seems silly to me like copyrighting the Sun or the Moon.
 

[Jim O’Kane]

Wow, having just read through all these responses since I started this around a week ago, this is exactly the type of discussion I had hope to shepard along.

Thank you to all who took the time to think about it and share it with the group.

It's funny. I feel like I understand it better now, having read the thoughts of all of you who know more than I, but then I step to the side for a second and feel well, I still really don't understand this at all.

Thank you all for an interesting discussion. I did learn a bunch though, so thanks for that folks.