Intelligent Insights
Diligent Legal Advocacy

The BIRDIE Act and Its Swing at IP Rights

by | Apr 3, 2024 | Business Law

As we thaw from the winter freeze and get glimpses of the warm summer weather ahead, many of us are anxious to transition from the winter doldrums of indoor golf on a simulator to the morning dew on the rolling fairways at golf courses both near and far. With the dawn of The Masters approaching, the famed Augusta National never seems to disappoint with its pristine condition, ever-fast greens, alabaster white bunkers, and the golf course design changes we anxiously await finally unveiled to the public each April. While Augusta National remains shrouded from public access and/or view, many other famous or renowned golf clubs across the globe have become accessible to the recreational golfer, albeit not physically, but feel as if we are playing these golf courses on indoor simulators or video games alike. Perhaps many have not considered the legal question of what protections golf course designers and architects have for their artistic vision and planning products.

Until recently, copyright laws under Title 17 of the U.S. Code have not provided protection for golf course designers and architects, as the last advancement in this area of law – the Architectural Works Copyright Protection Act of 1990 – focused on buildings rather than landscapes. Ironically, in a rare showing of bipartisan support, a bill (H.R. 7228) was introduced in the United States House of Representatives to “step into the fairways” of copyright law and extend protections to golf courses and their architects and designers, called the Bolstering Intellectual Rights against Digital Infringement Enhancement Act – or otherwise known as the “BIRDIE Act.” The Act seeks to amend Title 17 to extend copyright protections traditionally reserved for architectural works to the meticulously designed landscapes of golf courses. The BIRDIE Act acknowledges the unique creative efforts that go into designing a golf course, which, akin to architectural works, involves a complex interplay of aesthetic design and functional utility. This move aims to address the ease with which digital recreations of golf courses can be made, providing protections to the original designers’ intellectual property rights.

The Act’s introduction comes at a time when digital recreations of golf courses have become increasingly prevalent, raising concerns among course designers about the unauthorized use and replication of their designs. By bringing golf course designs under the umbrella of copyright law, “this legal tee-off” aims to provide these designers with the legal recourse to protect their intellectual property. The Act “acknowledges golf courses for what they are – creative works of art. Golf course architecture isn’t just planned on paper. It is created on-site by visionaries making the most of a setting.” Jan Bel Jan, past president of the American Society of Golf Course Architects (ASGCA). The Act protects the expressive features and esthetic design elements of golf course architects from being reproduced in other mediums (digitally) other than on a physical property itself.

What has come to light is the fact that many of us who “play” a golf course, whether on a simulator, video game, or virtual reality device, are actually “playing” a replica or copy of the golf course itself that has not been legally licensed to such digital media device. For example, it has become all too prevalent for digital manufacturers to lift the exact design, topography, and architectural renderings of a known golf course made playable under an entirely fictitious or made-up name featured in its library. This is the precise scenario the Act seeks to prohibit. Typically, golf simulators or digital media manufacturers pay a royalty to golf courses to add it to their library of courses. Each device sold and/or available to the public requires a separate license. For example, if a facility has four simulators, four separate licenses for the golf course made available to users are required.

If enacted, the BIRDIE Act would apply retroactively to works (golf courses) designed/created on or after December 1, 1990, and to unconstructed works embodied in unpublished plans or drawings from that date. The proposed legislation specifies that the design of a golf course, as embodied in tangible mediums such as architectural plans or drawings, would be protected. This includes the course’s landscaping, irrigation systems, paths, greens, tees, practice facilities, bunkers, lakes, and topographic features. Its retroactive application is a “hole-in-one” as it would potentially grant copyright claims to many existing golf courses, thereby altering the legal landscape for golf course architects and the golf industry at large.

While the BIRDIE Act may be representative of a new frontier in copyright law spurning a wave of litigation as golf course owners and designers seek to assert their newly granted rights, we may also witness the newest entrepreneurial endeavor, the virtual golf course designer. We will wait and see, but until then, keep this legal hazard in mind the next time you hit the links, wherever that may be!

Practice Areas