Thoughts on the Birdie Bill - HR7228?

[Jim O’Kane]

What are some of the thoughts of the "Experts" here on GCA regarding this new bill in Congress that seeks to extend copyright protection from the design of golf holes?
I figured something like this would already have been in place and covered by copyright law. Apparently not.

When I say "Experts", I'm not even sure I know what I mean. However, I do know that I mean architects and folks who work for architectural organizations, and even copyright attorneys that are in this forum who would directly be affected by this bill.

Please state, if you reply, if you are.

I am not.

I'm a law school dropout, ex D1 player, and 57 year old fan of golf course design be it golden age, classic, new, mom and pop, amateur, etc. In fact lately, what I find most interesting are the courses I've learned about that are mom and pop or amateur/amateur-ish designed courses by folks who have not really had any design experience or very little. I like hearing about those folks and those courses when others say, "hey, they did a good job here and the course is pretty decent." (There's a recent thread that addresses this a bit.)
I grew up playing a course NW of Chicago that sort of fit the bill of a Mom and Pop family operation that was like this. And, looking back on that place, although I used to call it a goat patch...It was pretty good and I miss it. It had some interesting design features I've never seen anywhere else.

So anyway, interested to hear what some of the people who would be directly affected by this think.

Would the good Dr. or CB say, you can't copyright what Mother Nature laid out in front of me? Would current stallions of design that frequent this forum say the opposite? Or vice versa?

Should there be compensation for someone who completely duplicates someone else's work? Is imitation the sincerest form of flattery? Or is taking that work and putting it into your own work a form of theft?

I don't know what I think about any of this really, except that on some level, the originator and creator ought to be at least offered some form of compensation or have the power grant or cease an operation from directly copying their own work.

https://sports.yahoo.com/birdie-bill-expand-copyright-protections-105500636.html

[Matt Schoolfield]

Copyright in America, in general, is out of control. It only exists to protect industries with very specific, creative, and generally scalable goods. Land forms, like clothing, seem to fall into a category of being too utilitarian. The idea that we would need to copyright golf holes to protect the golf course industry as a whole seems extremely dubious. As their work is not easily scalable like film or television.

If this right were granted, template holes as a concept, going forward, would be effectively gone.

[Tim Martin]

I read the subject article describing the bill and it applies to courses/holes created from December 1990 and forward. A lot of inspiration was drawn from the old dead guys and it made me think of Herbert Strong’s original island green on the 9th hole at the Ponte Vedra Inn & Club from 1932. Lawsuits regarding virtual replications should have a better chance than those that are in the ground.

[Tim Martin]

If this right were granted, templates holes as a concept would be effectively gone.

[Matt Schoolfield]

If this right were granted, templates holes as a concept would be effectively gone.

Template holes were around long before December of 1990 so if I’m reading the bill correctly would be exempt and able to be replicated in perpetuity.

If you think Tom had any good ideas, and wanted to replicated them... you can't. Even with the absurdity of back-dating this bill for 34 years we need to remember that the template holes of tomorrow are being built today. Here we're talking about 70 years after the author's death or 95 years after publication... If this law were in effect in the Golden Age, nearly every single course we praise, from NGLA, to Chicago, to even modern courses like Pacific Dunes or Old Mac wouldn't have been built as they are due to tort concerns.

We need to thing long and hard about that. The fact that templates are so ingrained in golf culture means this is a big deal.

A bill like this would take away a wellspring of culture from the next generation... simply to add to the wealth of those who inherited and used their previous generations culture. We're talking about simple land forms that become banned from reproduction. Dressing it up in "well this wouldn't affect us" is the exact type of double standard I worry bout.

Edit: I understand that people are out there making money (video games/virtual golf courses) off the designs of others, and that might "feel" wrong, but again, that isn't the point of copyright. Copyright is there to protect industries. Much like the entire clothing industry exists without copyright protection (even though there are entire businesses that create copycats: Zara is a classic example), I don't think the field of golf course architecture will collapse because people can copy golf courses... and if it won't, then the cultural and utilitarian concerns should take precedent over the marginal enrichment of an existing industry

[Phil Young]

After reading Jim's opening comments, I have a sudden urge to copyright "skyscraper" because I see a need to protect architects who design them. And since I've used it so often in my writings, "reef hole," "double dog-leg," "twisting the fairway," and scores of other terms that Tilly created in describing what he designed.

[Charlie Goerges]

Would one of our legal experts explain the ramifications in plain language? The linked article mentioned the tour 18 legal kerfuffle, but it wasn't clear to me that it was so much about using the design as it was about the promotion. What exactly would be the result?


When it comes to the simulator issue, that seems more understandable to me. It's like music. Pay the owner and the designer should get a royalty. (Not that I'm saying that musicians are getting fairly compensated, but a system where they get paid fairly for the the use of their work is what should exist.)


I need someone to make it make sense.

[Ben Malach]

Not a lawyer just a dumb shaper, but in my limited opinion this has more of an impact on the digital golf space than the physical one. As when was the last time someone seriously took on designing a Tour18-type facility with direct copies of other holes.


The closest modern project like this would probably be the Lido but even if the course had been copy-written. The course would have lapsed into fair use due to multiple factors by now making it a poor test case.


However, even though this type of course is no longer popular in the physical space. It is very popular in the digital one. This is where I think you would see the most litigation on this issue as it's easier and more profitable to build a 1-1 in pixel space than meat space.


Although the rights agreements around Golf are very interesting from my discussions with some architects that have had their work featured in games. Mentioned that they were not compensated for this use of their work. As it was the client that held the rights to the property. This makes sense but also means that this is going to be only really relevant for courses that want to protect that right.


With modern technology, a guy in his basement has a pretty good chance of being able to recreate a course close enough to cause conflict with the law. This means the courses would need to stay vigilant that their course was not being offered without contention as this could seriously impact their claims of copyright. If it is found that they haven't adequately defended their copyrights. This is the reason why a lot of games have had a problem keeping a copy of Augusta National on their platform as Augusta is very protective of their rights. Leading to regular cease and desist letters to unlicensed publishers.


Where this gets interesting is that your everyday club would now have these rights. This is interesting as its becoming more and more common for golf courses to have digital versions. This same ease of use makes it more and more affordable for clubs and courses to have digital versions. Either created by passionate members or through a contract from the club. This is all fine and good but what happens if you don't want your course to be used by Joe Q public?  As a majority of these digital courses live in a free model library on the internet.

These digital versions bring up a ton of legal questions that are very interesting and probably deserve a thread on their own.

But, all of this leads me to my final question again which should be its thread.

Is digital golf architecture worthy of study by golf architects?

[Niall C]

How many courses are there in the world and how many holes ? Then you have all the NLE courses as well. If someone was to claim a copyright infringement wouldn't a defence be that the hole had already been designed like that elsewhere ?


Niall

[Charlie Goerges]

How many courses are there in the world and how many holes ? Then you have all the NLE courses as well. If someone was to claim a copyright infringement wouldn't a defence be that the hole had already been designed like that elsewhere ?


Niall

This was my question as well. If Ben M. is right, it's really not about that and the focus will be more on the digital space. In which case, Like Ben said, it's different than some people are worrying about, and is still an interesting question that hits in a different way.


I wonder about all the course tour drone videos. Will those start to dry up if there is a way for the original courses to grab a slice of the advertising pie on YouTube? Right now I assume the makers of those already have to get permission, but with stronger IP rights will the courses have a claim on those channels' ad revenue?

[Bruce Katona]

Congress can barely function at the one task its assigned by The Constitution to do - make laws, and collect/spend money to govern and protect its citizens; much less waste time with silliness like this.  Getting Congress to agree is like herding cats !


They should be spending a lot more time on things that actually impact voters - i.e. taxpayers who pay their salaries:


1. Bridging the gap on Social Security so benefits are reduced in 10 years - this one is pretty simple but not politically palatable.
2. Get Medicare (our national health system for those 65) back on track.
3. Trim the annual budget deficit - not easy but necessary
4. Trim our national debt.


Work on those 4 - that'll keep yu busy while running for re-election in November. 

[Jim O’Kane]

After reading Jim's opening comments, I have a sudden urge to copyright "skyscraper" because I see a need to protect architects who design them. And since I've used it so often in my writings, "reef hole," "double dog-leg," "twisting the fairway," and scores of other terms that Tilly created in describing what he designed.

What did I say that would lend itself to copyrighting such terms, concepts and actual execution of the physical thing such as skyscraper, double dog-leg, etc.?

[Simon Barrington]

If this right were granted, templates holes as a concept, going forward, would be effectively gone.

Trump Template? - On another venue ("X") earlier today a poster (@NationGolfing) asked what course and where in the world a hole was from including a dramtic photo.


Spoiler Alert- It was the 1st at Ebotse Links in South Africa. Notably several respondents cited the 1st at (Trump) Doonbeg and the 1st at Trump International (Aberdeen) and there were certainly similarities...are we seeing the first signs of a new modern templating wave?

[Phil Young]

Jim,


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

[Wayne_Kozun]

If this right were granted, templates holes as a concept, going forward, would be effectively gone.

Trump Template? - On another venue ("X") earlier today a poster (@NationGolfing) asked what course and where in the world a hole was from including a dramtic photo.


Spoiler Alert- It was the 1st at Ebotse Links in South Africa. Notably several respondents cited the 1st at (Trump) Doonbeg and the 1st at Trump International (Aberdeen) and there were certainly similarities...are we seeing the first signs of a new modern templating wave?

Doonbeg wasn't originally a Trump course.  The Trump organisation bought it out of bankruptcy for €15 million in 2014.

[Simon Barrington]

Doonbeg wasn't originally a Trump course.  The Trump organisation bought it out of bankruptcy for €15 million in 2014.



Indeed, that's why I put the (Trump) in brackets for Doonbeg.
A Greg Norman original design, later tweaked by Martin Hawtree post Trump's purchase.


Played there a good while ago in its old guise, prior to the short Par 3 14th being swallowed by storms.
Hawtree also took out Norman's bunker set in the centre of the green on the 12th.


It is somewhat interesting that Trump Intl. Aberdeen' 1st is reminiscent of Doonbeg's 1st Hole too (Hawtree was clearly inspired by it), as well as this newer course in SA (not a Trump course, designed by Peter Matkovich).

Imitation may be the sincerest form of flattery, but the Birdie Bill could have unintended consequences re. Templating of newer (post 1990) holes/courses?...

[Tim Martin]

Imitation may be the sincerest form of flattery, but the Birdie Bill could have unintended consequences re. Templating of newer (post 1990) holes/courses?...

A new thread that contemplates the existence of specific modern templates would be an interesting adjunct to this discussion. If there is such a thread already in existence I’m not aware of it.

[Richard Hetzel]

Doesn't Congress (all of it) have more IMPORTANT things to do? I guess not.
Gonna be tough to police that as well.

[Forrest Richardson]

The act very simply expands the Architectural Clause — an already passed part of copyright law that extended protection to constructed buildings as opposed to only the plans drafted for buildings. The Guggenheim, as an example, would not have been protected in its finished form. Only in its designed form. building architects rightly were given protection for their finished works — the completed building.

Now, that will extended to completed golf courses, and designs for courses. Not just golf holes. Remodeling is allowed — same as with the Guggenheim … nothing in copyright prevents it from being remodeled.

[Tim_Weiman]

The act very simply expands the Architectural Clause — an already passed part of copyright law that extended protection to constructed buildings as opposed to only the plans drafted for buildings. The Guggenheim, as an example, would not have been protected in its finished form. Only in its designed form. building architects rightly were given protection for their finished works — the completed building.

Now, that will extended to completed golf courses, and designs for courses. Not just golf holes. Remodeling is allowed — same as with the Guggenheim … nothing in copyright prevents it from being remodeled.

Forrest,


I decided to build a golf course and just want to know a few things:


Is it ok to have 18 holes? Are sand bunkers on both sides of a green ok? What about a bunker in front of a green?


Are par 3s or 4s or 5s ok? What about length? Is there any specific length I can’t have?


What about uphill or downhill holes or even having both?


Also wondering about dogleg holes. Are they ok?


What about water? Can I build a course near the ocean or a lake or a river?


I just want to do the right thing. Help me please!

[Matt Schoolfield]

The act very simply expands the Architectural Clause — an already passed part of copyright law that extended protection to constructed buildings as opposed to only the plans drafted for buildings. The Guggenheim, as an example, would not have been protected in its finished form. Only in its designed form. building architects rightly were given protection for their finished works — the completed building.

Now, that will extended to completed golf courses, and designs for courses. Not just golf holes. Remodeling is allowed — same as with the Guggenheim … nothing in copyright prevents it from being remodeled.

It isn't that simple because of course nothing is. Beyond the end of modern templates, my biggest question is whether this forum would even be allowed to legally share photos of private courses without permission... because as the law is written, it's entirely possible that this would be a violation of copyright:

Photos of Interiors and Copyrighted Artworks 

No specific provision of the Copyright Act covers interiors of buildings or implies a distinction between exteriors and interiors. This means that a photographer likely can take a photo of an interior space that can be viewed by the public. An exception may apply if taking a photo would infringe on the privacy of the occupant, but this is a separate legal question. A photographer also would not be able to take a photo if they had agreed with the owner that they would not take photos. Getting written permission from the owner in advance is generally a wise precaution that requires minimal effort.

A photographer may be able to take a photo of an interior space that is not publicly viewable unless the space contains several copyrightable elements of the design. This means that the space would qualify for copyright protection based on the originality of the design. A finding of infringement is unlikely if the space contains many functional elements, which would not receive copyright protection. Photographs would infringe only if they show the interior space in enough detail to substantially reveal the architect’s plans or designs.

You can photograph any sculptures that are integrated into the design of a building without worrying about infringement. If a sculpture or painting is separate from the structure of a building and covered by copyright, you may not be able to take a photo that contains that artwork. A problem is especially likely to arise when a photographer takes a close-up photo of a separate artwork in a building and sells that photo on its own.

Source: justia.com, emphasis mine.

U.S. Copyright is extremely expansive and we shouldn't pretend it isn't.

We are literally talking about extending the force of U.S. Copyright to the ground we stand on... when that has little-to-no impact on the the industry. The architectural plans for golf courses are site-specific for goodness sake.

[Simon Barrington]

"We are literally talking about extending the force of U.S. Copyright to the ground we stand on... when that has little-to-no impact on the the industry. The architectural plans for golf courses are site-specific for goodness sake."

I would be very interested to know what the formal position of the ASGCA (& EIGCA) is on these proposals?
Have they been involved in the drafting/lobbying at all?
If they have been pro this, perhaps in a niave attempt to protect their current members IP, they may not have considered the unintended consequences of legislation. Which by its nature is rules based, rather than principles based, and therefore limiting to creativity.
It is a point of intellectual and collective hubris to think that the current IP is the peak of the profession that needs protecting.

[Charlie Goerges]

my biggest question is whether this forum would even be allowed to legally share photos of private courses without permission... because as the law is written, it's entirely possible that this would be a violation of copyright:

This is what I was wondering about earlier (albeit with youtube videos rather than still photos). In terms of the architect, a photographer can take a photo of the New York skyline and sell the image without compensating the architects and owners of every building shown within the image, correct? I mean, as it is explained, it's not making much sense.

[Luke Sutton]

Three questions…


1. Could Sand Hills sue every modern architect and course since they are all inspired by it? Could Youngscap force Kiser to bulldoze Bandon Dunes?


2. Who gets the royalties? Can a course legally sell its design to a sim company or does the architect own the design?


3. Assuming the course owns the design could a subsequent course built by the same designer get sued by an older one. Wicker Point has a hole that looks almost identical to 15 at Friars Head? Can Bill build that hole twice if the course owns the design of it?

[Niall C]

Luke


In terms of question 1, did the owner or architect of Sand Hills copyright their work ? I presume not, in which case its an academic question I suspect. I've never been to Sand Hills or Bandon but how alike are they ? Are there any direct copies of Sand Hills holes at Bandon ? If not, what exactly are they breaching in terms of copyright ? Also, where did the architect for Sand Hills get his ideas from ? 


Re question 2, that's more interesting. The suggestion earlier in the thread that it isn't just the idea that is copyrighted but also the actual finished work. What happens when the architect has retained ownership of his design but the client owns the finished hole/course ? You'd expect the issue to be taken care of in the client/architect contract but if not, what would happen if they both tried to obtain a copyright ?


Niall