For my final project, I decided to look into intellectual property rights related to golf. I recently started playing golf and decided to watch the Netflix golf documentary, Full Swing, in the hopes that merely watching these talented players would translate into improvements in my own game. This strategy has not yet proven to be successful, however, I was interested to learn about the controversy surrounding LIV Golf (“LIV”), a central theme of the first season of Full Swing. Debuting in 2022 and financed by Saudi Arabia’s Public Investment Fund, the LIV Golf Series purports to be an alternative to the PGA Tour.[1] LIV has offered players multimillion-dollar inducements to leave the PGA Tour.[2]
A news article from February 2024 suggests that LIV is also in competition with the Premier Golf League (“PGL”) due to similarities in their tournament format. After reading this article, I became interested in the question of whether it would be possible to protect the format of a sports tournament or competition through intellectual property law. According to Golf Digest, there is a legal dispute between the PGL and LIV, “likely around intellectual property,” due to LIV allegedly copying the PGL format.[3] The PGL tournament was backed by Saudi Arabian financers and was expected to become public in 2020, however, Saudi Arabia decided to back LIV instead.[4]
On the PGA Tour, there are 72-hole or four-round tournaments with a cut-off at the midway point and golfers start with staggered tee times.[5] The PGL wrote an “open letter” to PGA Tour players, noting that LIV is a threat to the PGA Tour’s dominance as well as its model, and claiming that LIV’s format was “based on [their] very own, original, PGL format.” According to the PGL website, their format includes a three-round tournament, shot gun starts, and both an individual and team championship with no cuts.[6] Similarly, the LIV format includes three-round tournaments with shotgun starts and no cuts, as well as individual and team competition.[7] LIV claims to “build on and complement the existing format of professional golf” and believes that their “new format will bring fans closer to the game and generate fresh levels of excitement.”[8]
One law firm discussed the issue of whether a sporting event could be patented and noted that while aspects of sporting events, such as specially designed equipment, can be patented, the idea for a sport or sporting competition cannot be patented in European and US regulatory systems and is commonly covered by the term “principles and methods for play.”[9] It appears that that the idea for a sporting event cannot be patented in Canada either. As per the Patent Act, patent-eligible subject matter must fit within one of the categories of invention.[10] An invention is “any new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvement” in one of the aforementioned categories.[11] An article from BLG explains that per Progressive Games Inc. v. Canada (“Progressive Games”), schemes or rules, including those related to games, are not included within these categories.[12]
In this case, Progressive Games Inc. invented a modified version of a poker game and the court considered whether the changes to the poker game were an “art” or “process” in accordance with section 2 of the Patent Act.[13]The Court stated that Progressive Games’ changes to the method of playing poker “[did] not substantially modify the poker game as it exists nor [did] they create a new game.”[14] This new method would still use a standard deck of playing cards and winning hands would still be determined by conventional poker rules.[15]
A similar argument can apply to the LIV and PGL golf tournament formats. Changes to the format can be likened to changes made to a poker method. Aspects of the format or method which differ from the PGA Tour, such as including less rounds and not making cuts, are merely incidental to the actual game of golf. Using the language from Progressive Games, these formatting changes do not “substantially modify” the game of golf itself, which is still played according to the same rules. For example, whether players are on teams or competing individually, they are each still playing golf according to the traditional rules, but teams build cumulative scores for awards purposes.[16] Thus, it seems that an idea for a sports competition or tournament format cannot be patented in Canada.
It is also unlikely that a sports tournament or competition format could be protected through copyright. In Canada, section 5 of the Copyright Act provides that copyright subsists “in every original literary, dramatic, musical and artistic work” if various conditions are met.[17] As alluded to above, the format of a sports competition is an idea, and ideas are not entitled to copyright protection as per Kenrick & Co. v. Lawrence & Co. (“Kenrick”).[18] Additionally, in class, we discussed the message in Kenrick that if a certain expression of an idea is the only way to achieve something, one cannot have a monopoly on that idea. This monopoly principle could be applied here, as there are a limited number of ways to design a golf tournament format.
While it seems that copyright does not exist in golf tournament formats, there is potential for golf course design to be protected through copyright. Two United States Congressmen recently introduced House Resolution 7228, called the “BIRDIE Act,” which purports to amend the U.S. Code’s wording of copyright protection for architectural works to include “the design of a course on which golf is played – except for miniature golf – as embodied in any tangible medium of expression, including an architectural plan or drawing.”[19] In Canada, golf course design could potentially receive copyright protection under the artistic works category. This category includes architectural works, which is the category under which the BIRDIE Act proposes to include golf course design.[20]
It is important to note the potential impact of extending copyright protection to golf course design, as this could affect the ability to replicate golf courses and holes both in the real world and via simulations.[21] One example of a course that has been replicated is the Augusta National Golf Club (“Augusta”), the home of The Masters, with multiple replica courses making tribute holes to Augusta.[22] Extending copyright protection to golf course design could prevent courses from replicating famous holes, thus diminishing opportunities for the public to play holes that they would not otherwise have access to.[23] As discussed in Théberge, there must be a balance between obtaining a just reward for the creator and promoting the public interest in the dissemination of works.[24]
[1] Jodi S. Balsam, “LIV Golf v. PGA Tour and the Future of Professional Golf,” (2023) Brooklyn Law School, Legal Studies Paper No. 753; Alan Blinder, Tariq Panja & Andrew Das, “What is LIV Golf? It Depends Whom You Ask” (2023), online: <nytimes.com> [https://www.nytimes.com/article/liv-golf-saudi-arabia-pga.html] [What is LIV Golf]
[2] What is LIV Golf, supra note 1.
[3] Joel Beall, “LIV Golf Facing Eight-Figure Dispute Over Copying PGL Format, Per Report” (29 Feb 2024), online: <golfdigest.com> [https://www.golfdigest.com/story/liv-golf-pgl-dispute-format-2024#:~:text=LIV%20Golf-,]
[4] Ibid.
[5] Edward Sutelan, “LIV Golf Rules, Explained: The Biggest Differences vs. PGA Tour Include Shorter Rounds, Teams & Shotgun Starts” (2022), online: <sportingnews.com> [https://www.sportingnews.com/ca/golf/news/liv-golf-rules-pga-tour/iywjdfqirerdej1hzcg0vd6c]
[6] Premier Golf League, “Format,” online: <premiergolfleague.com> [https://premiergolfleague.com/the-league/#format].
[7] LIV Golf, “Format,” online: <livgolf.com> [https://www.livgolf.com/liv-format].
[8] LIV Golf, “About,” online: <livgolf.com> [https://www.livgolf.com/about].
[9] Matteo Saleri, “How to Protect a Sports Competition?” (14 July 2022), online: <canellacamaiora.com> [https://www.canellacamaiora.com/how-to-protect-a-sports-competition/].
[10] Jason Mueller-Neuhaus, “Assesment in Parts: Patent-Eligible Subject-Matter in Canada” (10 July 2023) online: <blg.com> [https://www.blg.com/en/insights/2023/07/assessment-in-parts-patent-eligible-subject-matter-in-canada].
[11] Patent Act, RSC 1985, c. P-4, s 1.
[12] Jason Mueller-Neuhaus, supra note 10.
[13] Progressive Games Inc. v. Canada (Commissioner of Patents), 1999 CarswellNat 2186
[14] Ibid at para 23.
[15] Ibid.
[16] LIV Golf, supra note 7.
[17] Copyright Act, RSC 1985 c. C-42 s 5.
[18] Kenrick & Co. v. Lawrence & Co., 1980
[19] Techdirt, “Two Congressmen Introduce Law to Grant Copyright to Golf Course Design” (23 February 2024), online: <abovethelaw.com> [https://abovethelaw.com/2024/02/two-congressmen-introduce-law-to-grant-copyright-to-golf-course-design/]
[20] Copyright Act, supra note 17 at s 5.
[21] Michael McCann, “Birdie Bill Would Expand Copyright Protections to Golf Courses” (19 February 2024), online: <sportico.com> [https://www.sportico.com/law/analysis/2024/birdie-bill-golf-courses-copyright-law-1234767246/]
[22] Jason Scott Deegan, “Where You Can Play Augusta National Replica Holes” (3 April 2021), online: <golfpass.com> [https://www.golfpass.com/travel-advisor/articles/can-you-really-replicate-the-holes-of-augusta-national-these-golf-courses-have-tried]
[23] Jason Scott Deegan, supra note 22.
[24] Galerie d’art du Petit Champlain inc. c. Théberge, 2022 SCC 34
Communications Law