[Forrest Richardson]

I have always found it odd that courses — especially destination courses that rely on tourists — would be so controlling about images and access. I once waited 4 hours at Pebble beach to see a marketing executive. I finally left the bar and casually asked a clerk in the golf shop if I might walk out to see the new 5th hole — she not only said "yes", but she handed me the keys to a cart! I did not come back until about 7:00pm and I never heard from the marketing manager. This story is covered in some writing I completed, but I remained kind to Pebble Beach even though at the time I felt sort of dis-sed.

Unless you somehow claimed design rights, I do not think anyone can prohibit your photographs...but, they can probably make it difficult for you to use the course name in marketing them.

[BCrosby]

Not to belabor the point, but courses that limit your right to take photos of holes are not doing so on the basis of copyright law.

Frankly, I'm not sure what their legal basis is. Perhaps they view it as a condition to the license they grant you to come on their property. Perhaps it's based on their retaining the right to exploit their image. Perhaps they view it as a trademark issue. I'd be curious to hear their lawyer's explanation. But I don't see how it would be based on copyright.

Bob 

[Mark Pearce]

I am a copyright lawyer.  The most accurate answer so far is Forrest's.  I don't have time today to post a long answer but a few points:

1) copyright subsists for 70 years from the end of the year in which the author died.  Mackenzie died in 1934, so his copyrights will have expired.
2) copyright ownership in commissioned works (works for hire) differs between the US and Europe.  In Europe the author retains copyright in a commissioned work unless there is an express, written, contractual term.
3) copyright should not be confused with trade mark rights or patents.
4) copyright subsists in any original artistic or literary work, which includes works of sculpture or architecture.  I see no reason why copyright should not subsist in a golf coursedesign.
5) copyright is infringed by a substantial reproduction: copying is needed but it need not be an exact copy.

[Scott Warren]

Thanks Mark.

[Adrian_Stiff]

I am a copyright lawyer.  The most accurate answer so far is Forrest's.  I don't have time today to post a long answer but a few points:


5) copyright is infringed by a substantial reproduction: copying is needed but it need not be an exact copy.

I think this is the heart of the subject, but unless you admit it is a copy I think the variation in surroundings, landscape would be enough that a court would rule ..it is not a substantial reproduction. The golf design buisness is often about fitting and adapting reproductions and principles and ideas into the new painting and I think a judge would take that strongly into account.
Mark do you know of any cases that have ended up in court?

[Forrest Richardson]

Interesting point (well, if you like this wort of thing...)

Scorecards are among a very short list of items that are NOT copyrightable. Now, since most scorecards for courses also show photos and they may embody course renderings or plans, or even hole diagrams, I would guess that only the scorecard portion is not allowable to be copyrighted. This has always seemed odd to me, but I suppose the notion of infringing because someone had already created a 20 column wide by 11 row heigh scorecard would seem silly.

[Scott Warren]

I am a copyright lawyer.  The most accurate answer so far is Forrest's.  I don't have time today to post a long answer but a few points:


5) copyright is infringed by a substantial reproduction: copying is needed but it need not be an exact copy.

I think this is the heart of the subject, but unless you admit it is a copy I think the variation in surroundings, landscape would be enough that a court would rule ..it is not a substantial reproduction. The golf design buisness is often about fitting and adapting reproductions and principles and ideas into the new painting and I think a judge would take that strongly into account.
Mark do you know of any cases that have ended up in court?

It is in keeping with my OP, though. If I built an exact replica of ANGC, where each hole in order corresponded exactly with the matching hole at ANGC, and I had moved billions of tonnes of dirt to make it so, I suppose it would be pretty easy to prove I had set out to create as exact a copy as possible of ANGC.

Except that MacKenzie has been dead for more than 70 years...

[James Boon]

An interesting thread this.

Mark P,

Thanks for the formal clarification. Suprised though to find a lawyer giving free advice 

Scott,

ANGC brings up an interesting point perhaps. Does your point that MacKenzie has been dead for over 70 years relate to your hypothetical course being a replica circa 1930s? What about all the work which has been carries out since and the architects who designed these changes. Do these start to factor if you wanted to replicate todays course?

Cheers,

James

[Mark Pearce]

"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.

[Jay Flemma]

"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."

[Steve_ Shaffer]

Here's the Tour 18 case:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/5th/9621102cv0.html

[BCrosby]

Thanks for posting the case Steve.

I can think of a number of legal reasons why a course might limit photos of its holes. But - at least under US law -  I don't think protection of a copyright interest in the hole design is one of those reasons. I would think that taking photos of other things that are designed, things like buildings, cars, gardens, putters, dresses, chairs and so forth, is subject to the same analysis.

An interesting knot of issues.

Bob

[Mark Pearce]

"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?

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