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Two Congressmen Introduce Law To Grant Copyright To Golf Course Design

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Close up golf ball on green grassOf all the ways in which Congress chooses to spend its time and focus its priorities, legislation introducing a solution in search of a problem is surely one of the most frustrating. With that in mind, two United States Congress critters have introduced House Resolution 7228, which aims chiefly to confer concrete copyright protection to golf courses. Yes, to golf courses. And if you were concerned that this bill wouldn’t have been circuitously named to make it all a jaunty golf pun, well, your fears are unfounded.

U.S. Reps. Brian Fitzpatrick (R-PA) and Jimmy Panetta (D-CA) are cosponsors of H.R. 7228. Dubbed the “Bolstering Intellectual Rights against Digital Infringement Enhancement Act” or the “BIRDIE Act,” the bill was introduced on Feb. 5.

At issue with H.R. 722 is the U.S. Code’s wording of copyright protection for architectural works. The Architectural Works Copyright Protection Act of 1990 protects the design of buildings “as embodied in any tangible medium of expression, including a building, architectural plans, or drawings.”

When you get into some of the commentary surrounding how copyright and golf course design interact, it gets all the more absurd. The Congressmen’s comments on their legislation mostly amounts to insisting that designers need and deserve the same copyright protection as any other artist or creator. If you’re waiting for them to explain why that is, welcome to the club.

What seems to be the pretty clear, but unspoken, issue is that video games and golf simulators have taken to creating virtual copies of golf courses. And, typical “wait, why don’t I get paid for that” greed has seeped in. But some things aren’t copyrightable for good reasons. Remember, copyright is designed to create an incentive for the initial creation. And that’s it. Does anyone really believe golf course designers are suddenly no longer willing to design a golf course, because it might show up in a video game years later?

And, frankly, the bill seems to confuse functional and creative designs. And that has a pretty big impact on whether a design is afforded copyright law as it currently stands.

Under the Useful Article doctrine in US copyright law, if an object has a practical or useful function, copyright protection applies only to the original, creative elements “that can be identified separately from the utilitarian aspects of an object”, but does not extend to the underlying design of the functional object.

Look, as an avid golfer and fan of the sport, course design is an incredibly important aspect of the game. Mostly that is a matter of the function of playing the course that was designed and the strategies and shot-selection choices it forces you to make. Sure, part of what goes into course design is aesthetic, too. But that mostly revolves around showing off the natural surroundings in which the course is situated. The “tangible medium” in this case would be predominantly the sculpting of the natural world. That is worthy of copyright protection?

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And again, this seems to be a solution in search of a problem. Are course designers out there in the poor house? Sure, courses and holes get replicated by other courses, or in video games, all the time. That’s only a problem if we agree that courses and their designs should be copyrighted. If not, where exactly is the harm?

And if this is all on the up and up, why are only certain types of courses getting copyright protection while others are not?

H.R. 7228 would alter the copyright statute to explicitly include “the design of a course on which golf is played”—except for miniature golf—”as embodied in any tangible medium of expression, including an architectural plan or drawing.” The bill further protects specific characteristics of golf courses including irrigation systems; landscaping; paths; golf greens; tees; practice facilities; bunkers; lakes; and topographic features.

So every man-made lake gets copyright protection? Every teraformed area’s topographic features? Landscaping? The placement of irrigation systems?

Legislation should be designed to solve a problem or to right a wrong. I can’t for the life of me figure out how this bill does either.

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Two Congressmen Introduce Law To Grant Copyright To Golf Course Design

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