Birdie Act: An end to templates?

Imitation, said Oscar Wilde, is the sincerest form of flattery that mediocrity can pay to genius. Picasso put it slightly differently: “Talent borrows, genius steals”.

Pretty much every creative person that has ever lived has drawn on the examples set by those who came before him: as Sir Isaac Newton put it, “If I have seen further, it is by standing on the shoulders of giants”. There are times when using quotations serves no purpose other than to demonstrate the author’s erudition. But in this case, the message is pretty clear: creativity does not exist in a vacuum, but depends on the work done before by others. A creative person is one who produces something new. But almost never entirely new.

Creative people the world over give thanks every day for the existence of intellectual property laws, and curse those geographies where they are not so well implemented. It is intellectual property laws that stop the plagiarism of creative work – or at least punish it when it occurs – and which mean that writers, artists, musicians and the like, can make a (sometimes very good) living from what they do.

But IP protection is not a clear-cut area, as the often rather complicated court cases that occasionally hit the headlines show. If someone steals an entire article, or song, and passes it off as something they have created, then all is fairly straightforward. But that isn’t usually what happens.

Take the famous recent case when musician Ed Sheeran was sued by the estate of the late Marvin Gaye for allegedly copying Gaye’s ‘Let’s Get It On’ in his song ‘Thinking Out Loud’, which won the Grammy for Song of the Year in 2015. It is unarguable that the chord progressions of the two songs are very similar, but a chord progression cannot be copyrighted. In essence, the court decided that the elements of ‘Let’s Get It On’ that Sheeran was supposed to have copied were not, in themselves, sufficiently distinctive and original to warrant protection under copyright law.

By contrast, the classic rock group Led Zeppelin had a habit of ‘basing’ their songs on classic blues numbers (but forgetting to credit the original author. Most obviously, The Lemon Song, from the 1969 album Led Zeppelin II, was based on Howlin’ Wolf’s ‘Killing Floor’, though Wolf was not originally listed as a songwriter. His publishers sued in 1972, and subsequently he was listed as a co-writer.

Few would argue that architecture of any kind is not a creative activity. Architectural drawings, given that they class as artistic work, have been protected since copyright law was originally codified, but the structures that are produced using them were not, in the US at least, until the passing of the Architectural Works Copyright Protection Act in 1990, which extended copyright protection to the actual buildings produced by architects. But note the word ‘buildings’: landscape architecture (which, for the purposes of this debate, includes golf architecture, was specifically excluded). Golf architects, and other landscape architects, have been urging American politicians to correct this apparent oversight ever since.

This has, eventually, led to the Bolstering Intellectual Property Rights against Digital Infringement Enhancement (Birdie) bill, currently before Congress, and sponsored, in a rare Congressional display of bipartisanship, by Representatives Jimmy Panetta, a Democrat from California and Brian Fitzpatrick, a Republican from Pennsylvania. Panetta’s district is one of the ‘golfiest’ in America, containing as it does the likes of Cypress Point, Pebble Beach and Pasatiempo, and Fitzpatrick’s occupies some golf-heavy suburbs of Philadelphia, so it is not entirely surprising that they should take an interest in the subject.

Even so, this seems a rather specialised subject for Congress to get its teeth into. “Clearly the sponsors have connections with a vested interest. It is odd that you would think copyright protection for golf course architecture is something worth legislating about,” says Mark Pearce, a leading British intellectual property lawyer with the firm of Mills and Reeve, and a golf architecture junkie of long standing. “The list of things protected by copyright in the US is inclusive not exhaustive. So, you could always have argued that a golf course design is a work of authorship and thus copyright protected. In the UK, by contrast, that list of things in which copyright can subsist is an exhaustive list, not an inclusive one. So, if something isn’t on the list it can’t be copyrighted. The language of the bill is a bit weird. Identifying the bits of a golf course design that are included, and thus protected, strikes me as a surprisingly limited list. For example, it includes a lake, but not a stream. To be honest it looks as though it has not been terribly skilfully drafted – perhaps by a GCA rather than a professional draftsman!”

That said, the scope of the bill is fairly limited, simply seeking to extend the protection given to buildings architecture by the 1990 Act to golf course design. As such, the cut-off date for protection is December 1, 1990: nothing designed before this date would be covered by the proposed law. “It corrects an oversight from 1990 when the architectural clause was brought in and the actual building was protected and landscape architecture – or anything except buildings – was specifically excluded,” says golf architect Forrest Richardson, who has been campaigning on the subject for many years, and who has played a role in getting the proposed legislation before Congress. “Right now, the plans are protected, but the finished golf course is not. If the law passes, that will change. But it is important to realise that it is the entire course that is protected, not a feature – if, say, Bill Coore designs a fresh, new bunker that no one has seen before, it will not be protected.”

This point from Richardson is at the core of the bill. When first presented with the suggestion of copyright protection for golf design, the natural reaction is to ask, ‘Does that mean that building template holes or ones that in some way replicate the features or strategies of previous ones will be illegal?’ Just as there are said to be only seven different basic plots in the whole of storytelling, golf hole strategy is not a massively complex business: it is impossible to argue that the concept of bunkering different sides of fairway and green, for example, is a sufficiently original concept to justify protecting it. “Copyright protects what is on the page – in the work – not the concept behind it,” says Mark Pearce. “Copyrighting a Cape hole is impossible; the concept is not protected. It is the actual design that is protected. To an extent, when you are working with what is on the ground, no matter how many bulldozers you use, you are copying a concept rather than the expression. And to be protected by copyright, a work has to be original, and copyright only subsists in those parts that are original. European copyright law protects an artistic work for 70 years after the death of the creator. So, Harry Colt’s courses went out of copyright three years ago, given that he died in 1951!” Given the 1990 cut-off date, and the sheer quantity of Redans, Edens, Biarritzes and the like that were built before that date, it is patently obvious that lovers of such classic holes should have no fears that the construction of new ones might be banned!”

Read more: Robert Trent Jones, Jr., who has been at the forefront of campaigning for copyright protection for golf design, shares some thoughts.

A recent example featuring a classic-era course does illustrate the kind of issues that copyright protection of golf course designs might prevent. The reconstruction of CB Macdonald’s Lido course by a team headed by Tom Doak, using detailed data of the original contours – which was programmed into GPS-controlled machinery to shape the new course – would be extremely problematic had the original course been designed after the 1990 cut-off date. “I think it’s difficult to copy something exact in most cases. I would never want to do that, but I have done interpretations of template holes as have most GCAs,” says Jim Wagner of the newly-formed Curley Wagner firm. “Lido is obviously a case of copying something in its entirety but was done in the greater good of the game and to allow golfers to experience that all these years later is simply incredible. Tech is great in that sense.

“Let’s say a developer says, ‘I like this course’, goes and flies a drone over it, and replicates it somewhere else in the world: that would be actionable,” says Forrest Richardson. This seems uncontroversial, but perhaps slightly unlikely: there has not, as far as I am aware, been any flood of such courses, though replica courses do exist in reasonable numbers, and these would presumably be impossible to build under the proposed law, unless the developer negotiated a satisfactory deal with the copyright holders. “If I owned a classic course, and I wanted to get protection, I would trademark the name, and not worry so much about copyrighting the design,” says Pearce.

But a more real problem, which is where the legislation seems really aimed, is the proliferation of electronic reproductions of courses, for video games or simulator use. “It is possible that getting protection for the physical design, it may protect the designer against it being replicated in a virtual format,” says Pearce.

“With simulators, gaming and the like, golf course architects are left out in the cold,” says Richardson.

Fellow architect Jason Straka outlines the reality of the issue: “I recently had a friend tell me he ‘played’ one of my courses, only to learn he had never been to the facility but had experienced it using a virtual reality device. Someone had copied the course in detail without permission from myself or the club and made it available to be played virtually. The Birdie Act that is being discussed would prevent this sort of thing from happening without approval.”

This article first appeared in the July 2024 issue of Golf Course Architecture. For a printed subscription or free digital edition, please visit our subscriptions page.

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