Nike won a challenge to its “Jumpman” logo when the U.S. Court of Appeals for the Ninth Circuit affirmed the lower court dismissal of a copyright infringement suit brought by a photographer.
In 1984, Jacob Rentmeester took a series of photographs for Life magazine for a feature on the forthcoming Olympics. One of the pictures depicted then-college student Michael Jordan dunking a basketball. Rentmeester took the photo on an isolated grassy knoll on the University of North Carolina campus. He brought in a hoop and backboard that appear to tower above Jordan, who was instructed on the precise pose he was to assume. Rentmeester told Jordan to leap with one foot forward and the other back and used lighting and shutter speed to create a sharp image of Jordan contrasted against the sky.
Nike later purchased two color transparencies of the image and hired a photographer to produce its own picture of Jordan that was inspired by Rentmeester’s. Again, Jordan was depicted leaping toward a basketball hoop with the ball in his left hand above his head. The photo was taken outdoors and from a similar angle, but the Nike image featured the skyline of Chicago in the background, with Jordan wearing Bulls gear and Nike shoes. Rentmeester threatened to sue, and Nike paid him $15,000.
In 1987, Nike created its now iconic Jumpman logo, a solid black silhouette that tracks the outline of Jordan’s figure as it appears in the Nike photo. Although he waited until January 2015, Rentmeester filed suit alleging both Nike’s photo and logo infringed his copyright in the 1984 picture of Jordan.
A district court judge granted Nike’s motion to dismiss the action, and the Ninth Circuit affirmed. While the court found that Nike copied protected aspects of the photo’s expression, it held as a matter of law that the two pictures were not “substantially similar” to establish unlawful appropriation.
The panel found that Rentmeester’s picture was entitled to “broad rather than thin protection,” given the range of creative choices he made when producing his photo (electing not to use a basketball court as the setting, for example). However, “[j]ust as Rentmeester made a series of creative choices in the selection and arrangement of the elements in his photograph, so too Nike’s photographer made his own distinct choices in that regard,” the court wrote. “Those choices produced an image that differs from Rentmeester’s photo in more than just minor details.”
Nike’s photographer borrowed the subject matter and the general idea embodied in the photo, the panel found, but the position of Jordan’s limbs in the two pictures is different. “In Rentmeester’s photo, Jordan’s bent limbs combine with the background and foreground elements to convey mainly a sense of horizontal (forward) propulsion, while in the Nike photo Jordan’s completely straight limbs combine with the other elements to convey mainly a sense of vertical propulsion,” the Ninth Circuit said. “While the photos embody a similar idea or concept, they express it in different ways.”
Other differences—the positioning of the basketball hoops, the backgrounds and the arrangement of the elements within the image—also led the court to conclude the pictures were not substantially similar.
“In our view, these differences in selection and arrangement of elements, as reflected in the photos’ objective details, preclude as a matter of law a finding of infringement,” the panel wrote. “Nike’s photographer made choices regarding selection and arrangement that produced an image unmistakably different from Rentmeester’s photo in material details—disparities that no ordinary observer of the two works would be disposed to overlook.”
If the Nike photograph could not be found to be substantially similar to the plaintiff’s picture, “the same conclusion follows ineluctably with respect to the Jumpman logo,” the court added. “The logo is merely a solid black silhouette of Jordan’s figure as it appears in the Nike photo, which, as we have said, differs materially from the way Jordan’s figure appears in Rentmeester’s photo. Isolating that one element from the Nike photo and rendering it in a stylized fashion make the Jumpman logo even less similar to Rentmeester’s photo than the Nike photo itself.”
To read the opinion in Rentmeester v. Nike, Inc., click here.
Why it matters: The Ninth Circuit was adamant that the plaintiff could not claim an exclusive right to Jordan’s midair pose, even in combination with the outdoor setting and a camera angle that captured him silhouetted against the sky. “Permitting [Rentmeester] to claim such a right would withdraw those ideas or concepts from the ‘stock of materials’ available to other artists, thereby thwarting copyright’s ‘fundamental objective’ of ‘foster[ing] creativity,’” the court said. “Copyright promotes the progress of science and the useful arts by ‘encourag[ing] others to build freely upon the ideas and information conveyed by a work.’ That is all Nike’s photographer did here.” One member of the panel dissented, taking the position that substantial similarity “is an inherently factual question” that should be reserved for a jury, not for a court to decide at the motion-to-dismiss stage.