Trends, copying, getup, personality rights

12 October 2026

This one via Julian Schnehage; web developer, musician and all-around wonderful person:

"I see a lot of younger people defending people either manually copying or creating deepfakes of themselves to act out other people's content pretty much verbatim. They're saying "it's not stealing, it's a trend."  😂  What will happen when directly copying other people's brand and messaging is so normalized?

I think that there are actually a few seperate questions here, which we can go through one by one:

1. What are the potential legal implications for copying someone else's content?

2. What are the potential legal implications for copying someone's branding?

3. What happens when everyone is doing it (i.e. the behaviour becomes normalised, regardless of what the law might say)?

Here I should mention that I'm definitely not, nor have ever claimed to be, a specialist trademark or copyright attorney. So please take my views with a big grain of salt. And for any colleagues reading this who are, please let me know your thoughts and I'll be happy to plug your services in return :) .

I. Content copying

For the first question, this depends on whether the content can be considered to be a copyrighted work. Copyright can include "performances", defined in our Copyright Act as including-

"any mode of visual or acoustic presentation of a work, including any such presentation by the operation of a loudspeaker, a radio, television or diffusion receiver or by the exhibition of a cinematograph film or by the use of a record or by any other means, and in relation to lectures, speeches and sermons, includes delivery thereof; and references to “perform” in relation to a work shall be construed accordingly: Provided that “performance” shall not include broadcasting or rebroadcasting or transmitting a work in a diffusion service".

Similarly, copyright can reside in "dramatic works", which include-

"a choreographic work or entertainment in dumb show, if reduced to the material form in which the work or entertainment is to be presented, but does not include a cinematograph film as distinct from a scenario or script for a cinematograph film;" (emphasis mine). 

Dramatic works, lectures, speeches and sermons are all considered literary works for the purposes of copyright.

Taken together, the requirement for rendering the work in a material form means that just copying someone's performance (i.e. telling the same joke or performing the same viral dance moves) is unlikely to land you in hot water... unless you're also infringing one of these material aspects by, for instance, giving your own performance of a pre-written script, sermon or lecture. This then spins off into the complexities of which parts of a script are copyrightable vs not, what amount of copying is considered infringement, the concept of fair use and so on. And, of course, your average viral dance usually includes copyrighted music (at least until the great mime meme trend of 2028* kicks off), so this adds another avenue to infringe copyright. But the dance itself should be okay.

II. Brand copying

For the second question, this will depend on whether the branding is considered a trade mark or not. In South Africa at least, a trade mark can be obtained either via the common law route, or via trade mark registration. A "mark" in this case is any sign capable of being represented graphically, and includes devices, names, signatures, words, letters, numerals, shapes, configurations, patterns, ornamentations, colours and combinations of all of these. So a specific user's logo or use name would count.

A common law trade mark requires a history of consistent use, the use of the mark in trade or commerce, that the mark should be distinctive enough to identify goods and services, that the mark should have established a reputation in the market, and that the proprietor must have been the first to use the mark. Common law marks are also limited to where the mark is used and its reputation exists, which would have to be determined factually.

Registered trade marks are obtained by way of an application to the Registrar, who then examines the application and may impose conditions on the use of the mark in certain cases. Trade marks are registered for specific classes of goods and services, but well-known marks may be infringed even when the infringing goods and services are not in the same class. Marks which have been applied for can use the (TM) logo, while ones which have successfully been registered can use the (R) logo.

There are an enormous number of rules and exceptions related to registrability, so its usually best to get help from a trade mark professional if you're considering registering one yourself. For our purposes today, though, it's enough to know that obtaining a valid trade mark is indeed possible in the case of specific brands of content creators, and that this can in some cases include things like 'trade dress' - combinations of colours, shapes, patterns and so on specifically associated with those goods and services without necessarily including a name or logo. 

With the assumption that a trade mark exists, the key test then becomes one of infringement. And here the big test is similarity/deception/confusion: will the customers for those goods and services be deceived or confused by the would-be infringer based on the similarity of their marks to the existing trade mark? The similarity here can be phonetic, visual or conceptual, and is determined holistically in terms of its impact on the consumer. The nature of the consumer also plays a role here - very sophisticated consumers might be expected to be more discerning when confronted with somewhat-similar marks.

Taken all-together, this means that cloning, say, the logo of another content creator (or creating a confusingly-similar logo) is begging for trouble. Cloning the branding is also likely to cause issues, especially if the original content creator's branding was a key part of differentiating their offering.

III. General non-compliance

I remember a formative chat with a senior colleague, where I brought up social contract theory as a source of law - i.e. that the consent of the governed is required for something to be legally valid. His quippy response was that, if that was factually the case, then taxes wouldn't exist (because nobody likes paying taxes). Law definitely derives, and should derive, from the general morals and beliefs of society. But there's also a top-down, coercive element that shades uncomfortably into the maxim that, to misquote Mao Zedong, "all law grows out of the barrel of a gun". More specifically for the South African situation, we also have an overarching Constitution which sets absolute bounds on what is and isn't permissible, regardless of what anyone in the South African public thinks at this exact moment.

Which, for today's discussion, means this: it doesn't matter that everyone is doing it, nor that almost nobody is enforcing it. Short of the law being changed by some mechanism which our whole social and legal system does recognise (i.e. new legislation, or a change in jurisprudence), then something being unlawful remains that way.The actions of others provides no defence here. It should also be remembered that the primary enforcement mechanism** in the situations we've discussed today are civil - meaning that it will be the aggreived rights-holder taking you to court rather than the slow, grinding mechanism of the state.

For both moral, aesthetic and legal reasons, then: please don't copy other people's stuff. Make your own content, use your own branding, create trends rather than following them.

*The great trend of 2029 will be campfire reenenactments of famous memes after the internet goes down.

**The actual most-common mechanism are copyright strikes and the like, which puts Google, Meta et al in the uncomfortable (for us) position of being perhaps the largest source of de-facto copyright judgements in the world. It also functionally puts South African citizens at the mercy of foreign legislation such as the DMCA, but that's another discussion for another time.