On June 15, 2015, in Rentmeester v. Nike, Inc., the District of Oregon dismissed a lawsuit that accused Nike of copying the plaintiff’s 1984 photograph of Michael Jordan to create Nike’s now iconic “Jumpman” logo.
In 1984, plaintiff Jacobus Rentmeester took a photograph for Life Magazine of Michael Jordan while he was still a student at North Carolina (“the Rentmeester photo”).
Around the time that Life published the Rentmeester photo, Nike was planning its endorsement relationship with Mr. Jordan. Upon Nike’s request, Mr. Rentmeester loaned color transparencies of the photo to Nike for $150, with the condition that they not be used for “layout or any other duplication.”
Seven months later, Nike created a similar photograph and displayed it on billboards and posters.
Mr. Rentmeester told Nike he considered this a breach of their agreement. The parties then negotiated a $15,000 limited license allowing Nike to use the Nike photo for two years. However, after the license expired, Nike continued to use the Nike photo in a variety of advertisements, and in 1987, Nike began using the Jumpman logo on all its Jordan Brand merchandise.
To determine whether Mr. Rentmeester had stated a claim for copyright infringement, the court focused on two inquires: (1) whether the Rentmeester Photo deserved “broad” or “thin” copyright protection; and (2) whether the works were substantially similar.
With respect to the first inquiry, the court noted that the Ninth Circuit has held that courts should give “broad” copyright protection to works where the range of possible expression is wide, i.e., there are “gazillions” of ways the idea might be expressed (for example: an aliens-attack movie). Where copyright protection is broad, an accused work will infringe if it is merely substantially similar to the copyrighted work. By contrast, courts should give “thin” protection to works where the range of expression is narrow, i.e., only a few ways exist to express the idea (for example: a red, bouncing ball on a blank canvas). Where copyright protection is “thin,” an accused work must be virtually identical to infringe. The court emphasized that this continuum is determined on a case-by-case basis, and rejected the argument that the Ninth Circuit grants only thin copyright protection in all cases involving photographs or specific poses.
Turning to the Rentmeester photo itself, the court agreed with Nike that the idea it expresses is: “Michael Jordan in a gravity-defying dunk, in a pose inspired by ballet’s grand-jeté.” According to the court, only a handful of materially different variations exist in perspective and lighting that could be used to photograph Mr. Jordan in this pose. Because the range of expression for Mr. Rentmeester’s idea is so limited, the court concluded that the Rentmeester photo is entitled to only thin copyright protection.
With respect to the second inquiry, before analyzing substantial similarity, the court first filtered out the unprotected elements from the photo. Mr. Rentmeester conceded that the basketball, the basketball hoop, a man jumping, and Mr. Jordan’s skin color and clothing were all unprotected elements. After filtering, the court identified multiple material differences between the Rentmeester and Nike photos. For example, the Rentmeester photo has a grassy hill, blue sky, and setting sun, whereas the Nike photo had the Chicago skyline and a red and purple sky. Further, the court found material differences with respect to Mr. Jordan’s poses in each photo. For example, Mr. Jordan’s right arm is different in each, as are his legs (a scissor split versus a straddle position). Also Mr. Jordan’s left arm is bent slightly backward in the Rentmeester photo, but is fully extended in the Nike photo. Further, the scale and placement of Mr. Jordan is different in each photo. Because the photos are not virtually identical, the court dismissed Mr. Rentmeester’s claims against the Nike photo with prejudice.
The court also found that the only similarity between the Rentmeester Photo and the Jumpman logo was Mr. Jordan’s pose. For the reasons listed above, the court concluded that the poses were not substantially similar and dismissed Mr. Rentmeester’s claims against the Jumpman logo with prejudice.
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