As the worlds of artists, social media influencers, celebrities, and artificial intelligence (“AI”) continue to converge, iconic catchphrases are increasingly more than personality markers; they are evolving into valuable commercial assets. In an era where online identity holds substantial economic weight, the way catchphrases can be protected and commercialised is becoming both complex and crucial. Locally, expressions such as “Hello my Hunnays” by Kayla Kim Kay and “Molweni julle” by Anika Dambuza (also known as The City Makoti) have grown into instantly recognisable phrases among South African and international audiences.

The recent success of Hollywood actor Matthew McConaughey in trade marking his catchphrase “alright, alright, alright” has reignited global debate about whether catchphrases, and even voices, fall within the scope of trade mark protection. This raises an important question for South Africa: Does South African law extend trade mark protection to catchphrases and voices?

Matthew McConaughey’s case and the AI context

McConaughey recently registered several of his iconic phrases with the United States Patent and Trademark Office. This strategic move follows a rise in AI‑generated voice impersonations and modifications, illustrating the growing commercial need to safeguard distinctive vocal expressions. His actions highlight the dual purpose of trade marks: they serve not only as a defensive mechanism against unauthorised exploitation but also as a tool for proactive innovation and commercial expansion.

By securing formal protection, McConaughey has been able to legitimately commercialise AI‑driven opportunities. For example, he partnered with various companies and used AI technology to produce a Spanish‑language audio version of his Lyrics of Livin’ newsletter using his own distinctive voice. These developments have sparked global curiosity and prompted local inquiry: Could similar protection be secured under South African law?

What can be trade marked in South Africa?

Trade marks in South Africa are primarily governed by the Trade Marks Act 194 of 1993 (“the Trade Marks Act”). The Act defines a trade mark as a “mark used or proposed to be used by a person in relation to goods or services for the purpose of distinguishing the goods or services in relation to which the mark is used or proposed to be used from the same kind of goods or services connected in the course of trade with any other person”. Under section 9, a mark is registrable if it can distinguish a person’s goods or services, either inherently or through acquired distinctiveness.

Catchphrases can meet this requirement. If a phrase is consistently used in advertising, content creation, or merchandise, and becomes closely associated with a particular individual or brand, it may acquire sufficient distinctiveness to qualify for trade mark protection. South African law has long recognised that slogans and expressions can function as trade marks.  Notable past examples include MTN’s “Everywhere you go” and Standard Bank’s “Moving Forward.” These phrases transcend their descriptive origins to serve as clear indicators of commercial origin - thereby holding significant entrepreneurial and economic value.

Given this established legal landscape, there is strong potential for influencers, celebrities, and brands to register distinctive catchphrases as trade marks in South Africa, provided they meet the distinctiveness threshold.

What about voices?

Registering a voice itself as a trade mark in South Africa is largely untested. The Trade Marks Act does not explicitly refer to sound marks or vocal attributes as registrable categories. As a result, South African law offers no direct mechanism for protecting the distinctiveness of one’s voice as a trade mark.

This gap leads many to consider copyright law instead. Copyright in South Africa, governed by the Copyright Act 98 of 1978 (“the Copyright Act”), arises automatically when a work meets statutory requirements; no registration is required. Section 2 includes sound recordings among the categories of protectable works.

However, copyright protection for a sound recording is limited. It protects the recording itself, not the uniqueness of the performer’s voice.

The “author” is the person responsible for arranging or commissioning the recording, not necessarily the speaker or performer.

This means that while a particular recording of a voice is protected, the voice as an identity is not. Copyright does not safeguard vocal characteristics, tone, or pitch, the very aspects AI can readily mimic.

The legal gap in the age of AI

The rapid evolution of generative AI poses new risks to creators, influencers, and performers. AI‑generated voices and cloned vocal performances challenge traditional legal frameworks, which were designed with conventional authorship and production methods in mind. South African law has not yet adapted to the realities of AI‑assisted creation, leaving significant gaps in protecting voice identity and personal expression.

As AI technologies continue to advance, there is a growing need for legislative reform, or at a minimum, updated regulatory interpretation, to adequately protect individuals against unauthorised AI‑generated uses of their voices and phrases.