[비즈한국] Businesses sometimes make decisions that are difficult to explain based solely on money. Understanding the laws or systems hidden behind these decisions can help clarify the underlying circumstances. ‘Useful Business Tips (Al-Ssul-Bi-Beop)’ introduces clues to help you understand business trends.
When planning a round of golf, you might encounter someone who is particularly sensitive about the choice of course. As one's skills improve, their tastes and standards for a course become clearer. For example, some people dislike courses built by cutting into mountains, citing that they are tricky due to narrow fairways and many blind holes. On the other hand, some people find such courses more fun to strategize and play.
What if the distinctiveness and individuality of these courses were not just a matter of personal preference, but determined whether they could be legally protected as 'creative works'? This issue reached a major turning point through a civil lawsuit filed in 2018 and the recently delivered Supreme Court judgment 2024Da229671.
The case involves a copyright infringement claim filed by a golf course design and construction supervisor (hereinafter 'the Designer') against a company that creates golf course videos for screen golf (hereinafter 'the Screen Golf Provider'). The Screen Golf Provider had entered into usage agreements with golf course owners to produce videos replicating actual courses, but did not obtain permission from the Designer. The Designer argued that since the golf course itself constitutes a work protected under the Copyright Act, unauthorized reproduction is a copyright infringement.
The Screen Golf Provider argued that golf courses lack creativity and do not qualify as works for several reasons. First, the layout of facilities like clubhouses, access roads, and practice ranges, as well as individual holes, is inevitably constrained by the topography of the site, given the nature of South Korean golf courses being mostly built in mountainous terrain. Furthermore, they argued that functional factors such as user convenience and safety must be prioritized.
Second, they claimed that elements such as teeing grounds, fairways, roughs, bunkers, water hazards, and greens are merely standard components used across all golf courses. Third, they argued that individual holes are inherently constrained by golf rules, specifications, and international standards. Given these circumstances, they contended that even if a course has distinctive features, it is insufficient to recognize creativity as an architectural work.
However, the Supreme Court rejected the Screen Golf Provider's argument and the lower court's decision, recognizing the copyrightability of golf courses for the following reasons. First, the mere existence of practical and functional limitations in golf course design does not automatically negate its creativity. A golf course designer can exercise creative personality to distinguish their work from others by selecting, arranging, and combining various components in diverse ways.
Second, although golf courses share common elements, designers can craft them to guide players to develop specific strategies for each situation—such as tee shots, approach shots, and putting—and to experience the enjoyment of the game as the course unfolds hole by hole. They can also design them to achieve an organic combination by selecting and arranging elements to harmonize with artificial landscaping and natural surroundings, allowing users to appreciate the beauty of the course.
Third, the Supreme Court held that the lower court should have examined whether the selection, arrangement, and combination of the golf course’s components possessed creative personality that transcends mere function or practical ideas. By failing to deliberate on this and simply denying creativity, the lower court committed a legal error due to inadequate deliberation.
Golf enthusiasts can likely empathize with both sides. The argument that "many Korean courses look the same because they are mountainous" has merit, and the claim that "navigating a course is an art of strategy infused with the designer’s intent" is also quite persuasive. However, the crux of the legal judgment was whether the specific configuration embodied the creator's independent expression. In an era where strategy, flow, aesthetics, landscaping, and narrative are combined, golf courses are now being recognized as creative works.
How will this Supreme Court ruling affect the industry? Depending on the interpretation, if Screen Golf Providers enter into license agreements with course designers, it could lead to an immediate increase in screen golf fees. On the other hand, the brand value of golf course designers is likely to be strengthened. In the future, the brands of famous designers will become a marketing point. Long-term, as the design itself is protected as intellectual property, it could attract new investment and accelerate the development of high-end courses.
The Supreme Court has recently been expanding the scope of functional and practical works, similar to architectural works. For instance, in the 2019Do9601 ruling, the court found that a specific building (a cafe in Gangneung) contained the creator's unique expression through features such as the continuous line connecting the exterior wall to the roof slab, the projection and finishing angles of the slabs, and the tilt of the walls.
Therefore, the court ruled that the building was a protected work because it exhibited the creator's creative personality beyond mere functional or practical ideas. It found that a cafe in Sacheon, designed and built similarly without permission, had infringed on the copyright. This cafe ruling aligns with the golf course ruling, establishing that even functional subjects can be recognized as works if they contain creative expression.
The direction set by the Supreme Court is clear. The courts are gradually expanding the scope of protection for intellectual achievements. Therefore, if a business incorporates creative expression, it must obtain permission from the rights holder. This is the best strategy to prevent disputes and can be a brilliant move to attract new investment and expand business.