In a move stirring varied responses, US Congressmen Brian Fitzpatrick (R-PA) and Jimmy Panetta (D-CA) have recently proposed a bill, House Resolution 7228, principally aimed at granting copyright protection to golf courses. Titled the “Bolstering Intellectual Rights against Digital Infringement Enhancement Act”, or the “BIRDIE Act”, the proposed law was introduced on February 5th and seeks an extension of the current architectural copyright provisions to include golf course designs.
At the heart of the BIRDIE Act, a part of H.R. 7228, is a mindful examination of the U.S. Code’s existing articulation of copyright protection for architectural structures. As it currently stands, the Architectural Works Copyright Protection Act of 1990 safeguards the designs of buildings captured in any tangible medium of representation, including a physical structure itself, architectural plans, or drawings. The alteration proposed by the BIRDIE Act extends these protections to the design of golf courses.
Despite the congressmen’s firm posture that golf course designers are deserving of the same kind of copyright protection as other creators and artists, their proposition has been met with apprehension. Critics point out that while it seems apparent that video games and golf simulators replicating existing golf courses has prompted the push for expanded copyright law, copyright protections are in place to incentivize original creation. As such, questions arise if course designers would cease to create if their courses might be replicated in a video game, and if the appearance of a course in a game should be considered grounds for compensation for the course’s designer.
Notably, the proposed amendment seems to blur the lines between functional and creative designs, which could have significant implications on the parameters of what kind of design is eligible for copyright protection. Under the Useful Article doctrine in US copyright law, copyright protection is only applicable to the creative elements of an object that can be distinctly identified from the object’s utilitarian features. This does not cover the underlying design of the functional object itself.
The proposed change introduced in H.R. 7228 would modify the copyright statute to explicitly extend protections to “the design of a course on which golf is played”, barring miniature golf—embodied in any tangible medium of expression, including an architectural plan or drawing. The bill further seeks to protect specific features of golf courses such as irrigation systems, landscaping, paths, golf greens, tees, practice facilities, bunkers, lakes, and topographic features.
While the aesthetics of a golf course and the strategies the design elicits from players contribute to the appeal of the game, critics question if reshaping the natural world to form a golf course is a distinct enough medium to warrant copyright protection – especially when only specific types of courses are to be protected and others are not.
The push and pull over the BIRDIE Act reveals a broader conflict: legislations must be directed to address a concrete issue or correct an identified wrong, and the necessity of affording copyright protection to golf course designs is at best nebulous. The tangible damage being done to course designers without such protection is yet to be identified.
For additional insight, please refer to Techdirt’s report on the topic.