Copyright lawyer argues for protection for golf hole designs

by Peter Black, Jr.

The New York State Bar Association CLE lecture at Fordham University Friday featured some litigation shots that may have far reaching implications in the world of golf.

New York intellectual property law expert Robert Clarida of Cowan Liebowitz & Latman in Manhattan argued that golf holes are no different than sculptures and that the more individual detail in each hole's design, the more protection the hole or golf course should be afforded under copyright law. Clarida argued that golf hole designs "incorporate graphic and sculptural features that can be identified seperately from and are capable of existing independently of the utilitarian aspects of the course." Clarida's argument was lucid, well-organized, relied on case law and was convincing.

Some legal experts disagree. Intellectual property lawyer and golf writer Jay Flemma said that while every golf hole is unique with regards to topography, vegetation, soil, environmental limitations, acreage, altitude and other physical attributes, protection might have a chilling effect on design and that basic design elements, both esthetic and strategic must not be limited by those who have the deepest litigation budgets.

Prominent architect Stephen Kay, who did such tribute courses as McCullough's Emerald Links in Atlantic City and The Architect's Club in western NJ discussed the Tour 18 case which allowed pastiche courses as non-infringing and pointed out that trademark law affords protection to insure the public is not confused as to an individual course granting its imprimatur upon a copier.

The topic will be revisited shortly in NYC in a future lecture.

Clarida's firm represents the RIAA in many cases against individual downloaders of music over the Internet. Flemma has represented both the individuals accused of infringement and the companies which provide the file-sharing software and sites.