28 February 2018Copyright

Nike jumps for joy in Michael Jordan photo dispute

Sportswear brand Nike secured a win at the US Court of Appeals for the Ninth Circuit after defeating an appeal by a sports photographer.

Jacobus Rentmeester had accused Nike of copying his photo of former basketball star Michael Jordan leaping into the air and using it to create its silhouetted ‘Jumpman’ logo.

In a 2-1 decision, issued yesterday, February 27, the Ninth Circuit held that Rentmeester didn’t show that Nike had copied enough of the protected expression from his photo to establish unlawful appropriation.

Rentmeester’s 1984 photo depicts Jordan, who at the time was a student at the University of North Carolina, leaping towards a basketball hoop with a basketball raised above his head in his left hand, as if he is attempting to dunk the ball.

The photo originally appeared in Life magazine as part of a feature on American athletes who would be competing in the 1984 Summer Olympic Games.

Soon after the photo was taken, Nike commissioned its own photograph of Jordan, “one obviously inspired by Rentmeester’s”, said the Ninth Circuit.

In 1987, Nike created its ‘Jumpman’ logo, a solid black silhouette that tracks the outline of Jordan’s figure as it appears in the Nike photo.

“Over the past three decades, Nike has used the Jumpman logo in connection with the sale and marketing of billions of dollars of merchandise. It has become one of Nike’s most recognisable trademarks,” added the court.

In January 2015, Rentmeester sued Nike at the US District Court for the District of Oregon, claiming that both the Nike photo and the logo infringed his copyright.

Two months later, WIPR  reported that Nike had filed a motion to dismiss the claim, alleging that Rentmeester’s lawsuit was “exactly the sort of meritless case” that motions to dismiss are intended to address.

The district court granted Nike’s motion and dismissed Rentmeester’s claims with prejudice after concluding that neither the Nike photo nor the Jumpman logo infringe Rentmeester’s copyright.

The photographer appealed against the decision to the Ninth Circuit.

Speaking on behalf of the court, Circuit Judge Paul Watford said that although the photos are “undeniably similar” as they both capture Jordan in a leaping pose inspired by ballet’s grand jeté, Rentmeester’s copyright doesn’t confer a monopoly on that general “idea” or “concept”.

Watford added that the works were not “substantially” similar because of differences in background and lighting, so Nike’s photograph didn’t infringe.

“If the Nike photo cannot as a matter of law be found substantially similar to Rentmeester’s photo, the same conclusion follows ineluctably with respect to the ‘Jumpman’ logo,” noted the judge.

In a dissenting opinion, Circuit Judge John Owens said that while he agreed with the majority’s analysis and its holding that the ‘Jumpman’ copyright infringement claim can’t prevail, he disagreed with the conclusion on the Nike photo.

“This section of the majority reads like a compelling motion for summary judgment or closing argument to a jury, and it may be correct at the end of the day. Yet such questions of substantial similarity are inherently factual, and should not have been made at this stage of the game,” he concluded.

A spokesperson for Nike said: “We are pleased the Ninth Circuit has confirmed that Rentmeester’s claims are meritless. This is a true victory for ‘Jumpman’, an iconic logo which will continue to inspire athletes to reach a higher standard of greatness.”

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