Quick Post: I Think We Need to Talk About the Implications of the New Push to Copyright Golf Courses.

H.R. 7228: the “Bolstering Intellectual Rights against Digital Infringement Enhancement Act”

Okay, this is a serious subject, so I want to take it seriously, and try to present both arguments fairly. Secondly, this is just a quick post trying to inform people that this is being proposed.

Before I begin I will add this disclaimer. I am not a lawyer. This should not be construed as legal advice. If your are concerned with any implications of this bill you should contact an attorney that specializes in this area of law. I’m just presenting my thoughts on the bit of research on the subject I did as best I understand it. I may be wrong about some things here and would encourage any legal experts to correct me in the comments.

H.R. 7228 has been introduced by Brian Fitzpatrick (R-PA) and Jimmy Panetta (D-CA). Brian Fitzpatrick represents Pennsylvania's 1st district, with no discernible connection to the golf industry aside from some American Society of Golf Course Architects (ASGCA) members, but Jimmy Panetta is an obvious golf industry representative as he represents Monterey in CA where the Pebble Beach Corp is located. The bill would add golf courses to the architectural copyright laws, which would protect any courses (or parts of courses) created since 1990.

Argument for this bill:

I suspect the long-and-short of it is that the ASGCA is worried about LIDAR, and they want to get paid for their courses being reproduced in video games and/or simulators. Some courses built by ASGCA members have apparently had their courses copied digitally, and they are upset by that. There are even concerns that LIDAR can be used to make replicating an entire golf course trivial with modern digital bulldozers. 

This argument is fairly straightforward, and I don’t want to seem dismissive about that as I argue against the bill. I think some intellectual property concerns for golf course architects are extremely reasonable. 

My arguments against this bill:

My main concern about this is that copyright is far too broad for something like the ground we walk on, and the way the bill has been designed to be automatically backdated to 1990 is telling that this is much more about ending the possibility of any courses being copied in video games or in real life, than it is about actually protecting the industry going forward. 

Concern #1: this bill would probably ban templating holes moving forward, for all of our lifetimes.

Template holes are so common in golf, they are effectively a huge part of the culture and the cultural history. The most famous golf course architects in history are often known for their templates they brought to America, often combining them in routings that are interesting and novel. This can be seen in historical courses like National Golf Links of America (a C.B. Macdonald course), to modern courses like Old Macdonald at Bandon (a Tom Doak homage course to C.B. Macdonald). I think this bill would basically end this tradition going forward. Any chance of this shared culture going forward would be gone. Effectively nobody will template holes from after 1990, because instead of it being fun, it will be an unnecessary licensing expense.

Concern #2: private clubs can probably ban you from taking photographs on their courses and sue you for sharing them.

This gets into some nitty gritty details of the architectural copyright laws, and I am not a lawyer, this is not legal advice, talk to your own lawyer etc. Here however, I cite from Justia:

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.  

If you think Disney is litigious, just imagine how Augusta National Golf Club might literally start suing people for taking unflattering photographs of their golf course.

Concern #3: the physical ground is just too utilitarian to copy; trademark should be the way we deal with golf course architecture intellectual property.

When building a golf course, where does the ground end and the architecture begin? The natural features of a course cannot fall under copyright, yet on many courses where the natural landscape ends and the architecture begins is vague at best.

Again, I think intellectual property is reasonable, but when we are talking about pushing around dirt to make golf interesting, I feel like the better analogy is how we cannot copyright clothing. Instead, clothing manufacturers use trademarks. For example, if Gucci designs something and Zara makes a knock-off, in America, Gucci can’t sue Zara. Zara, however, cannot put a Gucci label on their stuff, because that is a protected trademark. So, if people want the genuine article, then they know they have to go to the source. The other side of that coin is that Zara will likely cut corners, and customers should know that.

Things that are too utilitarian shouldn't be subject to the power of copyright, and there is little more utilitarian than the ground beneath our feet. Architects, like fashion brands, should be able to use a trademark to protect their brand, so that people know they are getting the genuine article rather than a copycat, or even an homage, if that’s important to them. The trademark could apply to, say, a design on tees/flags/bunkers/turf, etc., and that trademark would be protected. That way, if you want to play a shitty knock-off of Amen Corner, say at Tour 18 Dallas, that would be legal, but they couldn’t brand their product as “Augusta National Golf Course” or “The Masters” or “Amen Corner.” They could just have the holes, and that’s it. As with Zara making knockoffs, I think most folks will know that the versions of the holes they are playing at Tour 18 will be of significantly lower quality than playing the authentic holes. 

Concern #4: you can’t copyright game mechanics, and a golf hole is effectively a playfield for a game.

I might be way off base here, but if we look at golf course architecture as the playfield of a game, this law may have no teeth anyway. People should understand that golf is a game, and as a game, it is not subject to copyrighting of game mechanics. The mechanics of game design aren’t protected by copyright, nor can the rules be. Only the text of the rules, the art, etc. Games are also generally protected by trademark and even patents, so you can buy a shitty knock off of monopoly, but you can’t buy a “copy” of monopoly. Fortnite is a copy of PUBG, and that’s fine, because you can’t copyright those game mechanics. 

Now, you might say that golf is the “game” and nobody is trying to copyright golf. However, this argument directly parallels the game of pinball. Pinball is a game, and different machines have 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. My argument here is that a golf hole is effectively a “playfield” for the game of golf, and the contours are simply game mechanics built into the ground. Copyrighting a playfield is effectively copyrighting a game mechanic. Not sure if this argument holds up, but I think it’s relevant.

Still, game designers have won many lawsuits that copies of their games were too similar in style, so if an architect creates a stylized course, say a desert course, perhaps they could prevent a copy of that course without the course being of a significantly different look and feel. 

Concern #5: a video game version of a golf course isn’t a golf course.

Following along from the last point, this game mechanic argument actually extends to actual video games. With sufficient copyright, the playfield of a simulator golf course will no longer be allowed. I suspect that certain challenges designed into courses that fall under copyright, a new template for example, will not be available without licensing.

I also am skeptical that the industry of building physical golf courses will suffer from the video game industry importing these courses into their games. I agree that it may be frustrating for architects, but I don’t think it actually threatens their livelihoods.

Concern #6: you won’t actually be able to copy courses in the public domain.

This one makes me very angry. The proponents of this law will immediately say that “all courses built before 1990 will be in the public domain” but that’s kind of bullshit. 1990 was 34 years ago. The LIDAR systems that started all this concern weren't available in 1990, so none of those courses were mapped back then. Why does this matter? Why it matters is that golf courses are living things. Every single little design change made since 1990 will be covered by copyright, and so any scans made today will open up the person doing the scan to copyright infringement. So, you may have a LIDAR scan of Augusta National, which should be in the public domain, but if you’ve accidentally included any part of the course that has been changed since 1990, you better get ready to be sued. And because this law is effectively backdated to 1990, this effectively means that there is no well-known golf course that could be scanned with LIDAR and reproduced, even if people claim they are in the public domain, because only a past version of the course is in the public domain, and those can never be scanned. 

Conclusion: please understand that this is a possibility, and your voice matters. 

So, to conclude, I really think this should be front of mind for the golfing public. I understand the concerns of the ASGCA, and I’m not entirely unsympathetic, but I also think the power of copyright is not necessary to protect this industry and the implications will be very detrimental for golf culture. However, I’m sure many would disagree with me. Still, this topic seems to be on the mind of more than a few representatives, so your voice should matter here. Whether you like this idea or not, you can contact your representatives. We don’t have to stand by and let that happen if we don’t want it to. If you care about an issue you should contact your representative and tell them how you feel.