Who Owns the Game? How IP Law Is Changing the Spirit of Sports

Introduction

The world of sports is no longer just about athletic performance, it's also about identity, image, and influence. In today's global and digital age, athletes have become personal brands. They earn money not only through playing their sport, but also by allowing others to use their name, image, and likeness (NIL). This includes appearing in ads, selling merchandise with their face on it, or being featured in video games. These rights help athletes protect and control their public image and are increasingly seen as valuable assets. At the same time, another area of intellectual property is becoming more important in sports: Traditional Cultural Expressions (TCEs). These are elements of culture like symbols, dances, clothing designs, and rituals that come from Indigenous and traditional communities.[1] However, these expressions are not always used respectfully or with permission. Hence, many communities seek legal recognition of their cultural expressions to prevent misuse and ensure proper credit and benefit-sharing. Together, NIL and TCE issues show how deeply personal and cultural identity is now tied to sports. As more athletes and communities push to protect their rights, sports IP (intellectual property) is becoming a fast-growing and evolving area of law.

Branding in the Age of Sports IP

In contemporary times NIL rights have become increasingly important. Usain Bolt's attempt to trademark his lightning-bolt pose[2] is a strategic move to control and profit from a globally recognized symbol associated uniquely with him. Cristiano Ronaldo's expanding his “CR7” empire to various sectors[3] shows how athletes use trademarks to create lasting business empires tied to their persona. Kohli had co-created Puma One8 merchandise and generated over ₹250 crore in four years and later took an equity stake in Agilitas.[4] By doing so, he converted his NIL rights from a simple endorsement fee into true ownership. This move shows how athletes can evolve from paid endorsers to brand co-owners. They can secure design approval, revenue shares, equity stakes, digital content rights (social media) and territorial exclusivity (Jaiswal, 2025).

NIL rights, being a part of broader personality rights, empower athletes to have control over the commercial use of their persona. In the U.S., NIL protection was given to college athletes after the landmark case of O’Bannon v. NCAA[5]. Ed O’Bannon, a former college basketball player, sued the NCAA for using his image in a video game without compensating him. Under the then-prevailing law, college athletes had no control over their NIL rights and were restricted to receiving only scholarships. The court ruled that college athletes should be allowed to earn money from their NIL, giving them control.

India has no statutes to protect NIL rights. Trademark protection under the Trade Marks Act confines itself to names and signatures[6], and the Copyright Act of 1957 only guards recorded ‘performances’[7]. Courts have patched the gap by invoking trademark, passing-off, and copyright doctrines in various cases but these cases only skim the surface of what ‘personality’ truly is[8]. In ICC Development (International) Ltd. v. Arvee Enterprises,[9] the International Cricket Council (ICC) wanted publicity rights over the image and branding of the Cricket World Cup and the athletes associated with it. It argued that it should have control over how players’ images and names were used during the tournament, which was rejected by the court. It was held that publicity rights are inherently personal and cannot be owned or transferred to a non-human entity like the ICC. Individual players such as Tendulkar or Kohli can claim rights over their image, extending such rights to a corporate body would violate fundamental rights under the Constitution[10], particularly Article 19, which guarantees freedom of expression, and Article 21, which ensures personal liberty. The court’s decision to not allow such a transfer protected athletes from having their identities subsumed into corporate control.

As Indian athletes continue to gain global recognition and financial stakes in their public identities, the law must catch up. A comprehensive NIL framework will help protect individual rights and create a transparent environment for all the stakeholders involved. Alongside this shift toward protecting individual identity in sports, there also exists a parallel need to recognize and safeguard traditional sports as forms of cultural heritage, rooted in collective identity and long-standing community practices.

Traditional Sports as Cultural IP

The roots of many Indian sports come from ancient communities. People in the Indus Valley Civilization and even before that played various sports not just for fun, but as part of their social, physical, and spiritual life.[11] These sports were never just leisure but a part of rituals, traditions, and survival. They were passed down through generations, creating a shared identity for many local communities. For example, more than 2,000 years ago, the sage Patanjali systematized diverse practices of yoga into a structured eightfold path in The Yoga Sutras of Patanjali. It brought together physical, ethical, and spiritual disciplines into an integrated framework, shaping how yoga has been understood ever since.[12] Mallakhamb originated in the 12th century as a wrestler’s training discipline, blending yoga principles with gymnastics to build strength, agility and focus. Revived and formalized in the 19th century by Balambhatta Dada Deodhar, it became both a sport and a holistic mind-body practice deeply rooted in India’s cultural heritage.[13] Today, even though these games have been commercialized, the communities that created them are not recognized as owners or contributors. Their knowledge and traditions are used in modern leagues but excluded from the rewards. This gap has been noticed at the international level.

Traditional sports and games “grouped with other cultural forms like dance, ritual, and storytelling” [14] qualify as TCEs as defined by WIPO [15] They are passed down through generations, either orally or by imitation, and reflect the cultural and social identity of the communities that practice them. These activities are part of the community’s heritage, often originating from unknown authors or individuals recognized by the group to carry on such traditions. They are typically not created for commercial gain but serve as expressions of cultural, social, or religious life. Traditional sports continue to evolve, maintaining relevance across generations. Their fulfilment of all “core features” [16] outlined by WIPO highlights the need for their recognition and protection as cultural property. This means that traditional Indian sports are more than just entertainment. They are a form of cultural property that deserves legal protection, just like music or folklore.[17] While global frameworks recognize these sports as cultural heritage, Indian IP law still does not. The communities that preserved these games for generations are not protected, and their cultural rights are not respected. Legal tools such as Geographical Indications (GI) and performers’ rights under the Copyright Act of 1957 do little to fill this gap. No traditional Indian sport has ever received a GI tag despite its huge cultural significance. Likewise, performers’ rights are narrowly defined and primarily apply to literary, musical, and dramatic works, excluding traditional sports and ritual games and exclude sports and ritual games.[18]

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) explicitly acknowledges the equal human rights of Indigenous communities. It emphasizes their right to maintain, control, protect, and develop their cultural heritage, traditional knowledge, and traditional cultural expressions.[19] Article 31(1) of the Declaration specifically includes manifestations such as oral traditions, literature, designs, sports and traditional games, as well as visual and performing arts. Furthermore, Article 31(2) places an obligation on states to take effective measures to ensure that Indigenous peoples can exercise these rights successfully. India’s failure to legally protect its traditional sports is in sharp contrast to countries like China. The latter has a clear national framework for safeguarding its intangible cultural heritage, including traditional sports. “Traditional sports and entertainment” is clearly identified as a form of cultural heritage that deserves state protection. The Law of the People's Republic of China on Intangible Cultural Heritages lays down mandatory duties for the government. For example, Article 6 requires local governments at the county level and above to include intangible cultural heritage protection in official development plans and budgets, ensuring financial and administrative support for preservation efforts. It also prohibits the distortion or derogatory use of cultural elements, preventing the careless commercialization or misrepresentation.[20] The state is obligated to protect any form of intangible culture that has historical, artistic, or social value by recording, promoting, and preserving it through structured inheritance and state-funded programs.[21]

When Ownership is Disputed

The boundaries between cultural appreciation, appropriation, and ownership are becoming more contested when traditional cultural expressions enter the marketplace. Indigenous and cultural communities often find themselves fighting for recognition, control, and benefit-sharing when their traditional practices are monetized. This can easily be seen in the cases of Bikram Yoga, and The Haka. For example, the New Zealand Māori tribe Ngāti Toa has long sought to restrict the commercial use of the “Ka Mate” haka. According to them its repeated use by sports teams and advertisers, especially the All Blacks amounts to cultural misappropriation. The New Zealand government formally acknowledged Ngāti Toa’s connection to the haka in a 2009 settlement.[22] It did not grant them exclusive intellectual property rights, leaving the tribe with symbolic recognition but little legal control over its use (New Zealand Government, 2009).

Case Study: Bikram Yoga

In Bikram’s Yoga College of India, L.P. v. Evolution Yoga, LLC[23], it was argued that the defendants had infringed upon Bikram Choudhury’s copyrighted works by including his yoga sequence into their own classes. Bikram wrote a book in 1979 that showed a sequence of 26 yoga poses and two breathing exercises. The main issue was whether these poses and exercises could be copyrighted. It held that the sequence constituted an idea or system intended to improve health, and under U.S. copyright law, such functional systems are not protectable. While the text and images describing the sequence could be copyrighted, the sequence itself could not be. Furthermore, the court rejected the notion that the sequence could be protected as a “compilation” or “choreographic work.” While this case makes clear that a health-focused sequence can’t be copyrighted, contrastingly the Art of Living (AoL) took a different tack.

Case Study: Sudarshan Kriya

Art of Living Foundation filed a patent on the Sudarshan Kriya breathing method to prevent private competitors from locking it away.[24] Under U.S. patent rules, inventors exchange full disclosure of their method for time-limited exclusivity (typically 20 years).[25] This ensures open access. In theory, anyone can inspect the patent record while still requiring users to pay royalties. Patents help to ensure open, but not free, access to protected knowledge.

Comparison of IP Tools: Bikram Yoga vs. Sudarshan Kriya

Both cases highlight the irony of using intellectual property law to protect cultural practices. Bikram tried to claim exclusive ownership through copyright and failed. That’s because the law doesn’t protect functional systems like yoga sequences. Meanwhile, AoL turned to patents not to monetize, but to prevent others from doing so first. But even this “defensive” use of IP creates barriers, since patents require royalties. In both cases, legal tools meant to guard tradition end up reshaping how that tradition is accessed and who gets to benefit from it.

The Way Forward

The way forward designing legal frameworks that focus on community ownership and preservation. Moving beyond existing IP systems like copyright and trademark, which often fail to capture the communal and intergenerational nature of traditional sports, as seen in the aforementioned case of Bikram yoga. Under the copyright system, more than one person can hold copyright.[26] Traditional communities can form associations, trusts, or other legal entities to hold copyright collectively. Communal copyright can be added through a specific sui generis provision within legislation. Such models are custom-built to suit the unique character of Indigenous knowledge and cultural practices. Sui generis protection refers to a unique and specially tailored legal framework designed to safeguard traditional knowledge (TK) in ways that conventional intellectual property laws (such as patents or copyrights) cannot adequately address. Because TK is often communal, intergenerational, and deeply cultural identity, sui generis systems aim to recognize and respect these distinct characteristics. According to the World Intellectual Property Organization (WIPO), sui generis systems offer flexible, context-specific protection mechanisms that respect the cultural values and customary laws of indigenous and local communities. [27]

In Canada, the Aboriginal Sport Circle, a national Indigenous-led organization, has worked on developing the National Indigenous Sport, Recreation, Physical Activity and Traditional Practice Strategy (2023–2028).[28] This initiative aims to empower Indigenous communities to manage, regulate, and benefit from their traditional games.

The patent CN110069829B [29] granted to Xi’an University of Technology offers a straightforward approach to safeguarding traditional sports as intangible cultural heritage. It creates a secure digital archive of classic movements. These movements are recorded and stored in a database and paired with an interactive learning platform. This guides new practitioners while preserving the original form. Hence it uses design tools to transform those archived movements into tangible cultural-creative products, all under clear rights ownership. By digitizing and teaching core movements, the method prevents loss and maintains authenticity across generations. The framework can vest copyright or related rights directly in the originating community or designated body, giving them control. This patent shows how modern IP tools can be tailored to respect and reward collective, intergenerational knowledge, not just individuals.

Conclusion

The expansion of sports-related IP demands a dual approach: one that upholds individual athletes' NIL rights and another that recognizes traditional sports as communal cultural property. Cases like O’Bannon v. NCAA and ICC v. Arvee Enterprises show the personal nature of identity and the limitations of institutional claims over it. Simultaneously, Bikram’s Yoga College v. Evolution Yoga and the Art of Living patent filing show the tensions between protecting functional cultural practices and enabling access. These cases collectively highlight the inadequacy of existing IP frameworks in addressing the evolving intersections of individual identity, communal heritage, and commercial exploitation. India must, therefore, move toward a sui generis model that accounts for both personal control and collective cultural rights within the domain of sports IP to finally settle the claim of who really owns the game.

References

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[2] ABC News. (2022, August 23). Usain Bolt files application in the United States to trademark his famous pose as a logo.Link to access

[3] Nogomania. (2025, February 6). Cristiano Ronaldo’s CR7 brand hits €850 million in 2025, rising 325% since 2020.Link to access

[4] Jaiswal, N. (2025, May 12). When Virat Kohli rejected a ₹300 crore deal with Puma to invest in an Indian sportswear startup and focus on One8’s global growth. Indiatimes. Retrieved May 19, 2025, from Link to access

[5] O’Bannon v. NCAA, 802 F.3d 1049 (9th Cir. 2015).

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[7] Government of India. (1957). The Copyright Act, No. 14 of 1957, §§ 2(qq), 38. Ministry of Law and Justice.

[8] Augustian, A. (2023). Protection of personality rights in India: Issues and challenges. IPR Journal of Maharashtra National Law University, Nagpur, 1(1), 44–53.

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[12] De Michelis, Elizabeth. A History of Modern Yoga: Patanjali and Western Esotericism. New York: Continuum Books, 2004.

[13] Menon, S., Singh, K. P., & Kumar, P. (2024). The evolution and cultural significance of Mallakhamb in Indian sports. International Journal of Yogic, Human Movement and Sports Sciences, 9(2), 225–227.

[14] United States of America. (2017, February 20). Traditional cultural expressions: A discussion paper (WIPO/GRTKF/IC/33/5). Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, Thirty-Third Session. World Intellectual Property Organization.n

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[17] United States of America. (2017, February 20). Traditional cultural expressions: A discussion paper (WIPO/GRTKF/IC/33/5). Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, Thirty-Third Session. World Intellectual Property Organization.

[18] Government of India. (1957). The Copyright Act, No. 14 of 1957, § 38. Ministry of Law and Justice.

[19] United Nations. (2007). United Nations declaration on the rights of indigenous peoples (A/RES/61/295).Link to access

[20] Standing Committee of the National People's Congress. (2011). Law of the People's Republic of China on Intangible Cultural Heritage (Art. 5). Order No. 4

[21] Standing Committee of the National People's Congress. (2011). Law of the People's Republic of China on Intangible Cultural Heritage (Art. 3). Order No. 42.

[22] Te Arawhiti. (2009, February 11). Ngāti Toa Rangatira Letter of Agreement between Ngāti Toa Rangatira and the Crown. New Zealand Government. Link to access

[23] Bikram’s Yoga College of India, L.P. v. Evolation Yoga, LLC, 803 F.3d 1032 (9th Cir. 2015

[24] Fish, A. (2006). The commodification and exchange of knowledge in the case of transnational commercial yoga. International Journal of Cultural Property, 13(2), 189–206. Link to access.

[25] United States Code. (1952). Title 35—Patents, § 112 Specification; § 154 Patent term and rights (as amended). U.S. Government Publishing Office

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[27] World Intellectual Property Organization. (2002, March 29). Elements of a sui generis system for the protection of traditional knowledge (WIPO/GRTKF/IC/3/8). Link to access

[28] Aboriginal Sport Circle. (2022). National Indigenous sport, recreation, physical activity and traditional practice strategy (2023–2028). Link to access.

[29] Xi'an University of Technology. (2019). Protection method for traditional sports intangible cultural heritage (CN110069829B). China National Intellectual Property Administration. Link to access