The BIRDIE Act: Copyrights for Golf CoursesMarch 21, 2024

The Bolstering Intellectual Rights against Digital Infringement Enhancement (a.k.a. the BIRDIE Act) is a non-partisan bill introduced by Congressmen Brian Fitzpatrick (R-Pa.) and Jimmy Panetta (D-Ca) on February 5, 2024 to provide copyright protection for architectural designs of golf courses. The bill proposes to amend the copyright laws by amending the definition of “architectural works”  to include golf course designs.

Historically, copyrights are premised upon the U.S. Constitution, Article 1, Section 8, Clause 8, which gives Congress the power to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their writing and discoveries. The first copyright act was passed on May 31, 1790, but did not cover architectural designs. The copyright laws underwent a major revision on October 19, 1976, which listed the categories for copyright protection as (1) literary works; (2) musical works, including accompanying words; (3) dramatic works, including accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic and sculptural works; (6) motion pictures and other audiovisual works; and (7) sound recordings. The 1976 Act gives the author the exclusive right to reproduce, distribute, display, and prepare derivative works based on their creation, and  extended the copyright term to the life of the author plus 70 years. In 1990, architectural works were added as an 8^th category, but was limited to building designs.

Copyright protection exists from the moment the work is fixed in a tangible form. The copyright owner may register the work with the U.S. Copyright Office, which enhances their potential damages for infringement. The copyright owner may be entitled to actual damages suffered as a result of the infringement, plus any profits of the infringer. As an alternative to actual damages and profits, the copyright owner may choose statutory damages, from $750 – $30,000, and which may be increased to $150,000 if the infringement is willful.

The BIRDIE Act seeks to afford golf course architects the same rights as other creative professions by prohibiting unauthorized copying of their aesthetic and intricate details. The Act specifically includes landscaping, irrigation systems, paths, greens, tees, practice facilities, bunkers, water hazards, and topography. Mini golf courses are excluded from protection.

The proposed Act is retroactive to cover golf courses designed after December 1, 1990. Virtual golf courses commonly found in simulators and video games will now risk infringement and damages if they copy real golf courses without permission. Simulators often let the players choose from multiple golf courses. So if the simulator has 4 courses, damages could be $600,000. Thus, licenses may become necessary for these digital version of golf courses. Older  courses, many of which are famous and iconic, may not be covered by the BIRDIE Act, such as Augusta National Golf Club in Georgia, home of the Masters Tournament.

Kirk Hartung is a member of the Mechanical Patent Practice Group at McKee, Voorhees & Sease, PLC. For additional information please visit  www.ipmvs.com or contact Kirk directly via email at kirk.hartung@ipmvs.com.

The opinions expressed are those of the authors on the date noted above and do not necessarily reflect the views of McKee, Voorhees & Sease, PLC, any other of its lawyers, its clients, or any of its or their respective affiliates. This post is for general information purposes only and is not intended to be and should not be taken as legal advice. No attorney-client relationship is formed.