Appeals court upholds ruling to dismiss copyright suit against Nike

By Tomas Kassahun | Mar 15, 2018

SAN FRANCISCO -- The U.S. Court of Appeals for the Ninth Circuit has upheld a decision to dismiss a photographer’s copyright infringement allegations against Nike Inc.

According to court documents, Jacobus Rentmeester alleged that he owns a copyright in the Michael Jordan photo Nike used to create the Jumpman logo.

The court said the logo isn’t substantially similar to the photo and Rentmeester can’t copyright the pose in the photograph. “He was entitled to protection only for the way the pose was expressed, including the camera angle, timing and shutter speed he chose,” the court said.

In making his argument, Rentmeester described why the Jordan photo he took is unique. In the photo Jordan jumps toward the basketball net while lifting the ball above his head with his left hand.

The photo was taken on a field at the University of North Carolina, with a hoop attached to a pole planted in the ground.

“Rentmeester positioned the camera below Jordan and snapped the photo at the peak of his jump so that the viewer looks up at Jordan’s soaring figure silhouetted against a cloudless blue sky,” according to court documents.

In his complaint, Rentmeester said he gave Nike permission to use the photo “for slide presentation only.”  

The court said it’s not clear what kind of slide presentation Nike was preparing but that’s when the company started its partnership with Jordan to promote the brand of Air Jordan.

According to court documents, it was around 1984 when Nike hired a photographer to take a photo of Jordan.

The Nike photo also showed Jordan jumping to the hoop with the ball in his left hand, raised above his head.

Although it was taken outdoors from a similar angle as Rentmeester’s photo, the court said the difference with the Nike photo is that the Chicago skyline is shown in the background.

Court documents say Rentmeester threatened to sue Nike when he saw the photo, but Nike agreed to pay him $15,000 so they could continue using the Nike photo for two years.

In 2015, almost 30 years after Nike created the Jumpman logo, Rentmeester sued Nike for allegedly violating the copyright of his original photo. 

The court, however, didn’t agree.

To make a strong case for copyright infringement, the court said Rentmeester had to do two things. First, he had to prove that he owns a valid copyright in the Jordan photo. Second, he had to show that “Nike copied protected aspects of the photo’s expression.”  

“No matter how similar the plaintiff’s and the defendant’s works are, if the defendant created his independently, without knowledge of or exposure to the plaintiff’s work, the defendant is not liable for infringement,” the court said.

The court added that the defendant is not liable if he only copies the ideas or concepts from another work. 

For the two works to be considered “substantially similar,” the court said the defendant would have to “copy enough of the plaintiff’s expression of those ideas or concepts.” 

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