Nike Inc. (“Nike”) hit a big fourth quarter three when a split Ninth Circuit panel blocked the “Jumpman” logo copyright infringement lawsuit brought by renowned photographer Jacobus Rentmeester (“Rentmeester” or “Plaintiff”) (Rentmeester v. Nike, Inc., No.15-35509 (9th Cir. Feb. 27, 2018)) . As previously chronicled in the February 2015 and June 2015 editions of Three Point Shot, Rentmeester filed an action against the prominent sportswear brand in January 2015 alleging that the company’s iconic logo of the silhouetted figure of Michael Jordan caught in mid-leap infringed upon the photo that Rentmeester took of Jordan for Life magazine for the 1984 Summer Olympics.
The image of Jordan has become synonymous with both Nike and its famous Air Jordan line of apparel: the athletic legend striking a grand jeté—a pose usually reserved for ballet dancers rather than MVPs—as he soars toward an unseen basket, ball palmed in his outstretched left hand. Rentmeester first captured this idea in his famous 1984 Life magazine photograph, featuring Jordan flying toward a hoop over a faintly-lit grassy knoll (a photo which Nike actually licensed for a limited time). A year later, a Nike photographer staged a similar scene, with Jordan wearing Nike shoes and rising above the Chicago skyline, a reference to the Chicago Bulls. Nike used its photo on posters and billboards to promote the then-new Air Jordan brand. In 1987, Nike created the Jumpman logo based on its photo and it soon became one of the company’s most famous trademarks. Almost 25 years later, Rentmeester filed his claim that Nike infringed his photo because Jordan first struck the unique grand jeté pose as part of the Life magazine photoshoot.
An Oregon federal judge disagreed with Rentmeester and granted Nike’s motion to dismiss the suit in June 2015 (Rentmeester v. Nike, Inc., No. 15-00113 (D. Or. June 16, 2015)). U.S. District Judge Michael W. Mosman explained that different works merit either “broad” or “thin” copyright protection depending on the range of expression involved in the work at issue, and found that the idea expressed in the Rentmeester photograph had a narrow range of expression, earning it only thin copyright protection. As a result, the works had to be nearly identical for Nike’s photo to infringe upon Rentmeester’s; since the photographs are not virtually identical, the court concluded that they were not substantially similar and the Nike photograph did not infringe. Declaring this a case of goaltending because his suit was never given a chance to reach the discovery stage, Rentmeester appealed, attempting a steal at the Ninth Circuit.
Reviewing the legal determination de novo, the Ninth Circuit majority affirmed the decision, but on a different reasoning than the district court. Discussing the unique challenge of separating the protected elements from the unprotected elements in a photograph, the court explained that what is protected by copyright in a photograph is the photographer’s selection and arrangement of what would otherwise be unprotected elements. Like the teamwork of the five players of a Princeton offense (which envisions a beautiful interplay of pass, dribble, shoot, screen, cut and misdirection), it is “the combination of the subject matter, pose, camera angle, etc. [that] receives protection, not any individual elements standing alone.” Because Rentmeester’s selection and arrangement of such elements “resulted in a photo with many non-standard elements,” the Ninth Circuit disagreed with the lower court’s characterization and found the resulting image is “entitled to the broadest protection a photograph can receive” and that Rentmeester was “entitled to prevent others from copying the details of that pose as expressed in the photo he took.”
The question remained, however, whether Rentmeester plausibly alleged that his photo and the Nike photo were “substantially similar” to constitute infringement. The Ninth Circuit found that Nike’s photograph did not infringe Rentmeester’s photograph because the two works, as a matter of law, are not substantially similar enough to establish unlawful appropriation. In denying Rentmeester’s drive to the basket, the panel held that “just 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. Those choices produced an image that differs from Rentmeester’s photo in more than just minor details.”
In order to prove unlawful appropriation, as Rentmeester was required to do, he would have had to have shown that the “two photos’ selection and arrangement of elements” were “similar enough that ‘the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them.’” The court determined that in this, Rentmeester had not succeeded, finding that the Nike photographer “borrowed only the general idea or concept” of the photo, but did not copy “the details of the pose” as expressed in the photo. By way of example, the appeals court pointed out several differences, including: the position of the limbs in each photo, the backdrop, the positioning of the basketball hoops, the placement of Jordan in the frame, and the use of shadow. Observing that Rentmeester’s copyright does not grant him a monopoly over the idea of Michael Jordan leaping in a grand jeté, the court ultimately found that the disparities between the Nike photograph and Rentmeester’s photograph were those that “no ordinary observer…would be disposed to overlook.” As such, since the Nike and Rentmeester photos are not substantially similar as a matter of law, the court reached the same conclusion of non-infringement with respect to the Jumpman logo.
Despite resulting in a dismissal, the judgment can’t be characterized as “nothing but net” for Nike. Judge John B. Owens dissented with the panel’s findings, in part, declaring that the majority’s ruling may have been correct, but that an ultimate comparison of the Rentmeester and Nike photos presented factual issues that were more appropriate at the motion for summary judgment stage. While agreeing that the Jumpman logo itself cannot infringe upon the copyright of the Rentmeester photograph, Judge Owens stated that he thought “that whether the Nike photo is substantially similar is not an uncontested breakaway layup, and therefore dismissal of that copyright infringement claim is premature.”
Following the Ninth Circuit’s affirmance of the dismissal, with time running out on the game clock, Rentmeester hurled a prayer from the half court line on April 12, 2018, petitioning the court for a panel rehearing and rehearing en banc. Given that rehearings en banc are generally not favored—and barring the Supreme Court deciding to take the floor—it appears this potential buzzer beater will probably rim out, leaving the Ninth Circuit panel’s ruling uncontested.