A recent ruling from the Seoul High Court (the "Decision") has drawn attention as the Court determined that golf courses which served as models for 3D videos for screen golf simulators, failed to meet the creativity standard and thus could not be protected as copyrighted works (Seoul High Court Decision No. 2022Na2000485 rendered on February 1, 2024). Screen golf practice ranges employing golf course simulators are hugely popular in Korea, as they provide immersive practice experiences through a 3D simulation system modeled on actual golf courses. However, screen golf simulation systems are often the subject of legal disputes concerning whether such simulation systems infringe the copyrights of the original golf courses.

The Defendant in the Decision is a leading screen golf company in Korea, and based on service agreements with golf course owners, produced 3D videos modeled after real-life golf courses (the " Golf Course Simulations") and distributed them to screen golf ranges that use the Defendant's simulation systems. The Plaintiffs are companies in the construction planning and management sector who designed the real-life golf courses (the "Original Golf Courses") used to create the Golf Course Simulations. The Plaintiffs filed a claim for injunctive relief and monetary damages, arguing that the Defendant's Golf Course Simulations infringe upon the Plaintiffs' copyrights (author's economic rights), such as the right of reproduction and the right to create derivative works.

In 2021, the first-instance court ruled in favor of the Plaintiffs, prohibiting the production, sale and other exploitation of the Golf Course Simulations and ordered the Defendant to pay a total of about KRW 3 billion in damages. However, in the appellate Decision, the Court overturned the first-instance court's decision and dismissed all of the Plaintiffs' claims. 

The 'creativity' element in golf course design

The key rationale for the Court's dismissal of the Plaintiffs' claims was that it was difficult to recognize the creativity of the Original Golf Courses, which is a requirement for a work to be protected by copyright.

In order to claim copyright infringement, the object of alleged infringement must first be recognized as a "copyrighted work". For something to be recognized as a copyrighted work, it must (i) embody the creator's expression of human thoughts or emotions, and (ii) display a degree of creativity. Meanwhile, among the types of copyrighted works, architectural works or figurative works, etc. are categorized as so-called "functional works." Due to their nature the scope of creative expression manifest in functional works may be restricted by the general methods of expression customary in the relevant industry, specification requirements, the intended purpose or practical functionality as such, considerations for the intended user's ease of operation, etc.

As such, the basic approach to the copyrightability of functional works established through case precedent is that works which have a practical function (e.g., buildings, technical design drawings, furniture, clothing, etc.) cannot be deemed to demonstrate 'creativity' according to general methods of expression insofar as such works merely express technical ideas and practical concepts.  In order to be 'creative' enough to merit copyright protection, the functional work must embody the author's expression of individualized creative personality. 

In a major Supreme Court precedent in which the copyrightability of golf courses was disputed in a similar manner as in the Decision, the Supreme Court ruled that golf courses by nature fall within the category of "functional works" which tend to emphasize practical function over formal artistry, and as such, may be recognized as a work of architecture protected by copyright if, and only to the extent that the golf course demonstrates the uniquely creative personality of the golf course designer (landscape architect) (Supreme Court Decision No. 2016Da276467 rendered on March 26, 2020).

Court's Findings in the Decision

The first-instance court awarded injunctive relief and partial monetary damages to the Plaintiffs on the ground that the components of specific golf courses are not naturally formed, but are determined based on the ideas of the golf course designer and expressed through the actual landscaping/construction process, etc., and thus, can be protected as an architectural work as they constitute expressions of human ideas or emotions.

The appellate Court, while affirming the lower court's basic legal principle that golf courses can be copyrightable, reversed its conclusion in the Decision, ruling that the Original Golf Courses that were the subject of this dispute did not display the required degree of creativity.

Specifically, the Court took into account that golf courses are required to comply with the rules of the sport and international standards, and as such, the creative freedom of a golf course designer is constrained by such rules, standards and specifications, the topography and shape of the site, number of holes to be placed, etc. and other practical elements, as well as by the functional considerations such as the level of difficulty and entertainment offered to the players, the convenience and safety of visitors, operational needs of the owners, etc. Therefore, ruled the Court, in order to recognize the creativity of a particular golf course as a copyrighted work, the unique creative personality of the golf course designer must be discernible in the overall design of the golf course as an object of aesthetic appreciation, including the arrangement and combination of individual components in the space occupied by the golf course, in a manner that outweighs the limits to creative expression imposed by the above factors, distinguishing the specific golf course from other golf courses. The Original Golf Courses at issue, despite being slightly different from other golf courses, did not display a sufficient level of individual creativity, the Court concluded. 

Implications

In the Supreme Court Decision No. 2016Da276467 cited above, the Supreme Court did not engage in a detailed assessment of the creativity of golf course design since the plaintiffs of the case – the golf course owners – were deemed to lack standing on the copyright claim.

In this aspect, the Decision is meaningful in that it is consistent with the Supreme Court's previous position that golf courses can be copyright-protected as functional works so long as they embody the designer's unique creativity, but goes a step further to provide detailed criteria for determining the creativity of golf courses in specific cases. However, as an appeal to the Supreme Court has been filed in this case, we will need to wait to see if the Decision is ultimately supported by the Supreme Court.