Six months after tip-off, the "Jumpman" copyright suit against Nike has been deemed an air ball. As we discussed back in the February edition of the newsletter, Nike's Jordan Brand has long been recognized by its "Jumpman" logo: the enduring image of the legendary Michael Jordan sailing toward the basket in grand jeté pose, ball in outstretched hand. However, well-respected photographer Jacobus Rentmeester came off the bench to file a lawsuit claiming that Nike created this logo using a photograph he took of Jordan for a special issue of LIFE magazine for the 1984 Summer Olympics. The lawsuit explained Rentmeester's thought process as he guided Jordan to leap unnaturally and hold the ball using his nontraditional left hand. Such efforts, according to Rentmeester, clearly established the distinctive and original elements of the copyrighted photo. Nike grabbed the rebound and took a similar photo of Jordan, this time in front of the Chicago skyline. This photo eventually led to the Jumpman silhouette.
Rentmeester sued Nike in Oregon federal court for copyright infringement and claims under the Digital Millenium Copyright Act (DMCA) for alleged removal of copyright management information from copies of the original photo (Rentmeester v. Nike, Inc., No. 15-00113 (D. Or. filed Jan. 22, 2015)). Rentmeester claimed that he created a unique pose that did not reflect Jordan's natural jump or dunking style. Although he admitted that Nike paid him $15,000 in March 1985 for a limited license to use the image on billboards and posters for two years, Rentmeester alleged that the company stepped out of bounds by using a similar depiction of Jordan in later marketing materials as well as when they created the Jumpman logo in 1987. In Rentmeester's mind, Nike unjustly benefited from a billion-dollar marketing slam and continued to use the Jumpman logo without payment since the deal expired in 1987. With Rentmeester now driving into the lane, Nike went up for the block, declaring in its motion to dismiss that Rentmeester "does not have a monopoly on Mr. Jordan … or images of him dunking a basketball. His copyright begins and ends with his specific original expression of that subject and theme."
On June 16, an Oregon federal judge agreed with Nike and dismissed the lawsuit, stating that Rentmeester had shot a brick (Rentmeester v. Nike, Inc., No. 15-00113 (D. Or. June 16, 2015)). U.S. District Judge Michael W. Mosman stated that Rentmeester's photo was worthy of only the narrowest copyright protection. Additionally, the court ruled that Nike's Jumpman image was not similar enough to Rentmeester's to find that Nike infringed his copyright.
The court explained the range of copyright protection available for Rentemeester's photo, requiring the court to determine whether the allegedly infringing work is "substantially similar" to the copyrighted work. What qualifies as substantially similar varies from case to case, depending on the underlying facts and whether the copyrighted work at issue involves a wide or narrow range of expression. For example, if there's a wide range of expression (e.g., there are countless ways to depict an alien invasion), the work will garner broad protection; on the other end of the floor, if there's only a narrow range of expression (e.g., such as depicting a red ball on a white canvas), then the copyright protection is deemed "thin," and a work must be virtually identical to infringe. In this argument, Nike won the doctrinal jump ball. Although a lot of creative decision-making went into staging the Rentmeester photograph, the court found the idea expressed in the Rentmeester photo – Michael Jordan in a gravity-defying dunk – to have a narrow range of expression that deserved only thin protection under the Copyright Act. The court held that although there were "certainly similarities" between the two expressions of the pose, a closer examination revealed "several material differences" (e.g., body position, background, Jordan's size), "resulting in a dismissal of the copyright claims for a lack of substantial similarity. With respect to the iconic logo developed from Jordan's pose in the photograph, Rentmeester's claims also fell short because the court found that the two respective poses depicted in the photographs were not substantially similar.
Judge Mosman's ruling resulted in a no-call against Nike, dismissing the case in its entirety. The decision allows Nike to keep pick and rolling with one of the most profitable and recognized apparel logos of all time.