Authors: Margaret A. Esquenet, Danielle Wright Bulger
Nike’s JORDAN brand is in the spotlight after a New York photographer filed suit claiming that Nike directly, contributorily, and vicariously infringed his copyright in the famous Jumpman Logo. See Rentmeester v. Nike, Inc. (D. Or. filed Jan. 22, 2015).
Plaintiff photographer Jacobus Rentmeester claims he crafted the “Jordan Photo” at the University of North Carolina for publication in a 1984 Olympic edition of LIFE Magazine. The photographer notes that he “conceived the central creative elements of the photograph,” including isolating Michael Jordan’s figure against the background of the sky, and having the player “soar elegantly” in a ballet technique known as a grand jeté. The stance, Rentmeester claims, was not a natural one for Jordan. After publication, Rentmeester claims a Nike representative paid him $150 for temporary use of two 35mm color transparencies of the Jordan Photo for “slide presentation only, no layouts or any other duplication.”
|Rentmeester’s “Jordan Photo”||The “Nike Copy”|
Rentmeester alleges that Nike exceeded the scope of the license within the next year by creating a “Nike Copy” of the Jordan photo where Jordan’s hand similarly extends toward the basketball hoop, and he leaps with his legs spread. Nike then proceeded to use the Nike Copy in advertisements for Air Jordan shoes and other Nike advertisements, according to the complaint. After threatening litigation, Rentmeester alleges Nike paid him $15,000 for a limited license to use the Nike Copy for two years in posters and billboards “for North America only.” Rentmeester further claims that the differences between the photos are limited, and the few changes Nike made were not original or creative:
As such, Rentmeester argues Nike willfully infringed his Jordan Photo through use of the “Jumpman Logo,” beginning in 1987.
The famous Jumpman Logo remains an integral part of Nike’s marketing strategy; thus, one may question why Rentmeester waited so long to bring suit. He obtained a copyright registration for his photo on December 18, 2014 (Reg. Number VA0001937374), and filed his complaint in the District Court for the District of Oregon on January 22, 2015. Though the complaint does not address the photographer’s delay, he may argue that his claim is not barred by laches in light of the Supreme Court’s 2014 Petrella v. Metro-Goldwyn-Mayer ruling. In Petrella, the daughter of late screenwriter Frank Petrella brought a copyright infringement suit seeking royalties from the continued commercial use of the film, Raging Bull. Although the daughter originally discovered the infringement in 1991, because she brought suit against MGM in 2009 seeking relief only for infringing acts that took place on or after January 6, 2006, the court held that laches could not be invoked to bar a copyright damages claim brought within three years of an alleged violation.
In this case, Rentmeester may similarly argue that his claims are limited to infringements in the three years prior to his complaint and were accordingly brought within the Copyright Act’s three year statute of limitations. That determination, however, and whether Nike has infringed, will be for the court to decide.
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