With the Supreme Court indicating that golf courses can qualify as "creations" protected under the Copyright Act, the screen golf industry is on edge. Depending on the outcome of the remand trial, corporations in the sector, including Golfzon, could face liability for damages, potentially triggering a wave of lawsuits.
According to legal sources on the 28th, the Supreme Court's First Division (presiding Justice Ma Yong-ju) on the 26th overturned an appellate ruling that had favored Golfzon in a copyright infringement suit filed by domestic golf course design corporations and sent the case back to the Seoul High Court. A lawsuit filed by a U.S. course design corporation against Golfzon on the same grounds over course design drawings reached the same conclusion.
These corporations filed suits in 2015 and 2018, saying Golfzon infringed their copyrights by producing screen golf simulations based on courses they designed.
◇Supreme Court recognizes creativity in golf courses
Legal experts say the Supreme Court's decision recognizes the creativity of golf courses. The Copyright Act treats as works the creations that express human thoughts or feelings. However, to receive protection, they must meet the minimum requirement of creativity.
The lower court had found it difficult to recognize creativity in golf courses and design drawings. Because basic components such as the teeing ground, fairway, bunker, water hazard, and green are arranged according to game standards, it viewed it as hard for a designer's creativity to be expressed. The thrust was that the area is effectively closer to ideas.
The Supreme Court, however, saw it differently. It found that creativity can be expressed as designers select, arrange, and combine the overall composition of a hole and the placement of each element, and harmonize landscaping with the surrounding natural environment. Elements that lead users to devise strategies for attack and feel change and tension during play are also the designer's expressions.
Choi Jong-seon, an attorney at Daeryook & AJU representing the plaintiffs, said, "Even if exteriors look similar, like at temples or palaces, each reveals a unique aesthetic through its detailed structure," adding, "Golf courses likewise embody a designer's individuality in how each hole is composed and its difficulty is calibrated."
Lee Hae-wan, a Sungkyunkwan University law school professor, said, "In the process of harmonizing with the natural environment, a golf course allows a wide range of choices that include aesthetic considerations," adding, "There is a strong possibility that a designer's creative individuality will be expressed."
Kwon Dong-young, president of the Korea Society of Golf Course Architects (KSGCA), also said, "Course design is not simply a lineup of holes but a meticulous construction of flow, from the start to the last hole, in a structure with a beginning, development, turn, and conclusion." The association said that immediately after the lower court ruling, it obtained opinion letters from golf course designer associations in the United States, Europe, Australia, and Japan, and submitted them to the Supreme Court as reference materials.
◇"A spark for mass lawsuits remains"… remand trial is the watershed
The screen golf industry is watching the remand trial closely. Depending on the outcome, Golfzon could face liability for damages ranging from hundreds of millions to tens of billions of won.
However, this ruling does not immediately establish liability for damages. The Supreme Court only set a standard that creativity should not be readily denied; whether there was specific infringement must be reexamined in the remand trial.
Jung Sang-jo, a Seoul National University law school professor, said, "Aside from partially recognizing creativity, the Supreme Court's decision is unfinished," adding, "It will also need to be reconsidered whether Golfzon's simulation footage constitutes reproduction and, even if it does, whether it can be permitted under 'freedom of panorama.'"
Freedom of panorama is an exception under copyright law that allows the photographing and filming of buildings and artworks installed in places open to the public, such as roads and parks.
Even so, a spark remains. If the remand court also rules in favor of the design corporations, they could file additional lawsuits against companies that recreated similar courses. A representative of one design corporation said, "This time we filed suit against Golfzon, the leading company, but depending on the outcome going forward, lawsuits against other companies are also possible."
Jung Yeon-deok, a Konkuk University law school professor, said, "Copyright protects not ideas but specific expressions," adding, "If expressive elements such as bunker and natural feature placement were reproduced as is, infringement could be established." Analysts say that if numerous similar cases are identified, litigation could spread.
Industry watchers also say this ruling could lead to a reorganization of the golf course licensing system. If separate contracts with design firms become necessary, it could lead to higher content usage fees, and that could be passed on to users in the form of higher rates.
Golfzon said, "This Supreme Court ruling remanded the case on the grounds that additional review is needed on the creativity of each course," adding, "We will seek judgments on the issues in the trials ahead." Of roughly 400 courses in total, Golfzon has already halted the use of the 28 courses at issue in this lawsuit.