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The banter between Alcaraz and Djokovic over Alcaraz's new serve motion at the Australian Open, which allegedly imitates Djokovic's serve, might be in a very sportsmanlike manner, but there is an element of truth in the underlying question of what IP rights can indeed protect personal traits. This trend is already gaining momentum among actors with unique voices or mannerisms who now seek copyright, trade mark, or other forms of IP protection in a proactive attempt to protect themselves from AI-generated imitations. Motorsports also come to mind. The Grand Turismo video game's algorithm is continuously improved using real-time data from F1 drivers. The drivers' racing lines and the iconic racing tracks are all visible to the public, raising the question of whether the information is in the public domain. The discourse can be completely warped if the return of serve involves a patent.
What can be protected? In terms of the Copyright Act a serve motion is functional and technique-driven, governed largely by biomechanics and the rules of tennis. Even if refined through years of training, it is unlikely to meet the originality threshold required for copyright protection as a work. Prior existence of substantially similar serve motions (which Djokovic could easily demonstrate) would further undermine any claim of originality. In addition the serve motion itself is not protected but the fixation of that movement, such as footage (one of many), which will most likely fall under the ambit of a broadcast, which would be owned by the broadcaster.
While copyright protection struggles to accommodate human movement and athletic technique, trade mark law offers a more conceptually coherent framework when the focus shifts from how something is done to what it signifies in the minds of the public.
Under the Trade Marks Act 194 of 1993, protection is not afforded to functional movements or techniques as such. A serve motion, golf swing, or racing line will generally be incapable of registration as a trade mark because it does not function as a badge of origin in the ordinary course of trade. Trade marks must distinguish goods or services of one undertaking from those of another, and purely functional or performance-related conduct does not ordinarily meet this threshold.
South African law recognises a separate but related regime under the Performers' Protection Act 11 of 1967, which affords performers certain exclusive rights in respect of their performances. A "performance" includes any action, speech, or presentation by a performer that is capable of being recorded, broadcast, or otherwise communicated to the public.
Sporting performances are not expressly excluded from the Act, but the legislation was historically drafted with artistic and entertainment performances in mind. In practice, the application of performers' rights to professional sport is limited and uncertain. The key difficulty lies in ownership and consent: elite sporting performances are almost invariably subject to contractual arrangements in favour of event organisers, leagues, or broadcasters, who control fixation, broadcast, and commercial exploitation.
Viewed holistically, South African IP law draws a principled distinction between competitive imitation and commercial exploitation. The former lies at the heart of sport; the latter is the proper domain of intellectual property protection. A serve motion, racing line, or swing may be studied, adapted, and even mimicked in competition without infringing IP rights. Liability arises only when those elements are abstracted from the sporting contest and redeployed as commercial assets in a manner that infringes copyright, dilutes a well-known mark, or constitutes passing off.
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