The iconic Michael Jordan ‘Jumpman’ logo has slam-dunked its way into a copyright infringement claim between Nike and New York photographer, Jacobus Rentmeester. In an interesting twist on the usual copyright claim of ‘you are stealing my photo for commercial use without my permission’, Rentmeester is arguing that Nike unlawfully recreated his 1984 photo of Jordan and used the recreation as inspiration to design the Jumpman logo. You can see the two images side-by-side here. This dispute is a reminder to properly address the protection and licensing of intellectual property at an early stage.

History of the Jumpman Logo

The Nike Jumpman logo is a silhouette of basketball player Michael Jordan hovering mid-air, with legs outstretched and his arm reaching towards the hoop. In an interview, Jordan said that it wasn’t a basketball move but a ballet pose known as the ‘grand jete’. The Jumpman logo was first used in 1988 on the tongue of the legendary Nike Air Jordan III shoe, which was designed by footwear designer and architect Tinker Hatfield. Today, the logo is used on a broad range of Michael Jordan branded Nike goods, worth over US$3.2 billion in sales in 2014. Nike Air Jordans are the most successful trainer range ever made and can cost over US$300 per pair.

Background

In the build-up to the 1984 Olympics, as part of a 22-page “American Excellence” photo essay for LIFE Magazine, Rentmeester took a number of photos of Jordan jumping towards the hoop with his legs spread and arm up. According to Rentmeester, this photograph in LIFE magazine was the first time that Jordan was documented performing such a pose. In August 1984, after publication of the Olympic photo in LIFE, Nike paid Rentmeester US$150 for use of two negatives from the photoshoot. Nike subsequently returned the negatives to Rentmeester.

In February 1985, Nike arranged their own photoshoot of Jordan and it was this series of photos that, according to Nike, captured the actual pose Nike used to design the Jumpman logo silhouette. The lawsuit indicates that when Rentmeester threatened to sue over the 1985 Nike photo, Nike paid him $15,000 for a limited two year licence to use the photograph.

Lawsuit

Rentmeester has brought his case in US Federal District Court in Portland, Oregon, and is seeking unspecified damages, profits from the Air Jordan brand and a court order to stop the sale of items carrying the offending logo. The lawsuit alleges that Nike recreated key elements of the Olympic photograph which Rentmeester took in 1984. Rentmeester also claims that Nike breached the 1985 agreement by using his 1984 Olympic photo of Jordan both in marketing materials and as a basis to create the Jumpman logo.

While copyright cannot protect an idea itself (as opposed an expression of that idea), Rentmeester is arguing that Nike’s 1985 photo was essentially still his work. He claims that he created and staged the pose, which is not reflective of Jordan’s natural jumping or dunking style, and directed Jordan for over an hour. Rentmeester argues that he was a freelance photographer for LIFE magazine and so he remained “the continuous and exclusive owner of the copyright” of the 1984 Olympic photo.

Representatives of Nike indicate that they are not officially commenting on the legal action and the company is continuing to sell its Jumpman-branded goods.

Copyright conundrums

The Court’s decision in this case will be of great interest. Arguing the infringement of copyright existing in photographs can often prove less than straightforward, as seen in the facts of this case. In particular, it is unclear how the court might view the relationship between the 1984 Olympic photograph, the 1985 Nike photograph and the resulting Jumpman logo. While it is open to the Court to consider the subsequent works to be a reproduction, the court may instead take the view that they are an adaptation.

Despite these issues, it is not clear why it has taken Rentmeester 28 years since the Jumpman logo first appeared on Nike Air Jordan trainers to bring his claim. Rentmeester’s lawsuit may fail because of the applicable statute of limitations, which provides that copyright claims must be brought within 3 years of an infringing act. However, Rentmeester’s legal team may cite the May 2014 US Supreme Court case which held that, provided copyright infringement is on-going, a delay in filing a copyright claim does not prevent the claimant from seeking damages.

Protect your IP!

Rentmeester’s claim is also a timely reminder for Irish companies to sufficiently address the assignment and protection of intellectual property developed or created by their employees and contractors. This can be achieved by ensuring that employment contracts and consultancy agreements contain robust provisions for the assignment or transfer to the employer of all intellectual property rights in material developed or created during the course of their employment or in the performance of their duties and to waive their moral rights in such material.