After spending years in lower federal courts, the Supreme Court has denied certiorari in a copyright case involving Nike’s famous “Jumpman” logo.
Nike’s “Jumpman” logo, featured prominently on its Air Jordan merchandise, is instantly recognizable. However, this logo has been subject to a major lawsuit, with a photographer claiming that Nike violated his copyright in his own photo of Michael Jordan. After spending years in the federal courts with favorable rulings for Nike, the Supreme Court denied certiorari on Monday, giving Nike a win.
In 1984, Jacobus Rentmeester took a photograph of Michael Jordan for Life Magazine, which featured Jordan gracefully soaring through the air for a dunk. Nike paid Rentmeester $150 in August 1984 for temporary use of the color transparencies for Nike’s slide presentations. Nike, however, used Rentmeester’s photograph as a basis for its own photograph of Michael Jordan in 1985, which it used to promote its new Air Jordan brand. Rentmeester soon found out about this photograph, and Nike prevented litigation by paying him $15,000 to use the photograph for two years starting in March 1985.
In 1987, however, Nike decided to turn its photograph into the now famous “Jumpman” logo, featuring a silhouette of Michael Jordan from its photograph. This logo is used extensively on Air Jordan merchandise and has become one of Nike’s most recognizable symbols. In 2013, Forbes estimated that the Jordan Brand generated over $1.75 billion globally, with Jordan earning more than $60 million annually from royalties in his deal with Nike.
With such a recognizable and profitable brand, it is no wonder that Rentmeester filed suit, as Nike would likely not have come up with its “Jumpman” logo if it had not been for his photograph. Rentmeester filed suit in January 2015, claiming that Nike’s photo and the “Jumpman” logo violated the copyright in his own photograph. The Federal District Court of Oregon dismissed the case, concluding that Nike did not violate Rentmeester’s copyright in his photograph. Rentmeester then appealed to the Ninth Circuit.
In order to state a claim of copyright infringement, Rentmeester must plausibly allege that (1) he owns a valid copyright in his photograph of Jordan, and (2) Nike copied protected aspects of the photo’s expression. For the second element, Rentmeester must also prove that there was copying, which requires Nike to have knowledge of or exposure to Rentmeester’s photo, and unlawful appropriation, which requires that the photos be substantially similar in how they express ideas or concepts.
The first requirement was easily met by Rentmeester: he owns a valid copyright in his original photograph of Michael Jordan. Rentmeester also easily met the copying aspect: Nike purchased the rights to the color transparencies of the photograph, which means they certainly had access to Rentmeester’s photo. It is the second aspect, unlawful appropriation, where Rentmeester ran into trouble. The Ninth Circuit applied only the “extrinsic test” in this case, where the court filters out unprotected, common ideas/concepts and only compares the remaining elements that are protectable.
Rentmeester argued that Nike copied the protectable elements of his photograph. Most notably, Rentmeester directed Michael Jordan to make a specific pose in the air and photographed him from a specific angle. He argued that Nike’s photo copied the pose, point of view, and subject of his original photograph, making the works substantially similar.
The Ninth Circuit, however, agreed with Nike, which successfully argued that the photographs were not substantially similar. Nike only copied the general idea and concept of the original photo, and not the specific expression of Rentmeester’s photograph. One significant difference between the images is the positioning of Jordan: his limbs are bent in the Rentmeester photo, suggesting horizontal propulsion, while they are straight in the Nike photo, suggesting vertical propulsion. There are also important differences in the foreground, background setting, lighting, and positioning of Jordan and the basketball hoop. An ordinary observer would quickly notice these differences, and Rentmeester cannot claim a copyright in the general concept of Michael Jordan gracefully dunking a basketball in an unusual setting.
After this decision, Rentmeester decided to appeal to the Supreme Court, hoping that they would reverse the Ninth Circuit. However, the Court has refused to take up the case, meaning that the Ninth Circuit decision stands. For some, this may be a controversial decision, as it allows for companies to make altered versions of photographs and artwork without giving any compensation or even credit to the original authors. On the other hand, a decision for Rentmeester could have limited creative expression too greatly by allowing for the copyrightability of common ideas and concepts. Though the Supreme Court turned down Rentmeester’s case, it is still possible that they could rule on another contentious copyright issue in the future.
Photo Credit: Jacobus Rentmeester and Nike
Alex Betschen is a graduate of the University at Buffalo School of Law. He was a student attorney at UB’s Civil Liberties and Transparency Clinic, where he worked on cases involving government disclosure of private information and use of hacking tools. He also served as an Editor on the Buffalo Law Review and is an accomplished musician.