A particularly interesting case was decided last month involving a copyright claim over Nike’s use of Michael Jordan’s iconic “Jumpman” pose. The issue revolved around whether this picture taken by Nike infringed upon this picture that was previously taken by photographer Jacobus Rentmeester. The case was not only noteworthy for its high profile subject matter, but for illustrating a core concept of copyright law; namely the inability to copyright an idea, no matter how unique or inventive that idea is. The case also asked the deceptively simple question: How closely does a second photograph have to resemble an original one to constitute an unauthorized copy? Much to Nike’s contentment and Rentmeester’s dismay, a judge for the United States District Court in Oregon answered: Pretty darn close. [1]

Setting the Stage

Rentmeester set up a photo shoot with Michael Jordan for a 1984 issue of Life Magazine. Jordan, at the time a North Carolina student, was instructed to jump and perform a ballet maneuver called a grand-jeté while extending his left arm with the ball towards the basketball rim. The photograph took place outdoors rather than in the traditional setting of a gym. While the pose was unnatural for Jordan, the resulting image created the illusion of a majestic, gravity-defying dunk. This photo caught the eye of Nike, which was entering into a deal with the future NBA legend. Nike asked to pay Rentmeester for use of the photos. Rentmeester agreed but under strict conditions: Nike could use transparencies only for slide presentation purposes but was prohibited from otherwise copying or reproducing them. Soon after, Nike took its own photo of Jordan in a strikingly similar pose and angle. However this photo had several distinct features, including the time of day, lighting, background, arrangement of elements, and slight modifications to Jordan’s pose. Rentmeester learned of this photo and contacted Nike claiming it had violated their agreement. Nike agreed to pay Rentmeester $15,000 for a license to use the Nike photo for a two-year period. However, after the license expired, Nike continued to use the photo and the silhouette of Jordan in advertising and Jordan-related products. Rentmeester sued Nike more than two decades after this license expired, claiming that Nike continued to infringe upon his copyrighted photograph.[2] A common “gut reaction” to reading the facts of the case and looking at the photos is that Rentmeester was “ripped off.” After all, if Rentmeester was truly the first one to capture Jordan in the “Jumpman” pose, shouldn’t he be entitled to some of the profits his iconic image has generated? While this may have an element of truth considering Nike’s conduct, one has to remember one of the core concepts of copyright law: Ideas are not copyrightable. Rather, it’s the expression of the idea that is entitled to protection.

Judicial Determination: Substantial Similarity

With this tenet in mind, the judge was left to answer a lone question when deciding Nike’s motion to dismiss the case: was the Nike photo substantially similar to the Rentmeester photo so as to constitute copyright infringement? In order to find that the photo was substantially similar, the judge had to first determine whether the photo was entitled to “thin” protection or “broad” protection under 9th Circuit precedent. If an idea could have been expressed in a myriad of ways, the particular expression of that idea is entitled to broad protection. If an idea has only relatively few ways to be expressed, then it has thin protection. The example that the court gave was that of an “aliens-attack” movie, which has a near-infinite number of ways to be expressed. Such a work is entitled to broad protection. However, the painting of a red ball on a blank canvas, which has much more limited ways of being expressed, is only entitled to thin protection. Thus, a very similar aliens-attack movie could be found to be infringing upon an older movie, whereas a painting of a red ball would have to be virtually identical to infringe an older painting. In order to find out where the Rentmeester photo fell along this spectrum, the judge had to determine what idea was expressed by the photo. He ultimately concluded that the idea expressed was “Michael Jordan in a gravity-defying dunk, in a pose inspired by a ballet’s grand-jeté.” Since there were only a handful of relevant angles and ways to express this idea, the Rentmeester photo fell much closer to the painting of a red ball, as opposed to the aliens-attack movie. As a result, the Rentmeester photo was only entitled to thin protection. This narrow definition of the idea being expressed sounded the death knell for Rentmeester’s case. Since Rentmeester’s expression was only entitled to thin protection, the second photo had to be virtually identical to be deemed an infringing copy. The judge subsequently found many differences between the two photos.. Crucially, the judge found Jordan’s pose in each photo to have key differences. The parting of legs in Rentmeester’s photo is similar to the traditional grand-jeté that one makes when leaping horizontally, whereas Jordan’s legs in the Nike photo are in a “V” shape, suggesting a vertical jump. Additionally, in Rentmeester’s photo Jordan’s right arm is bent while in the Nike photo the arm is fully extended. Because the Rentmeester photograph was only entitled to thin protection, even though aspects of the pose were similar, they were not enough to sway the legal result. Since the judge found that the photos were not substantially similar, he also found that the silhouettes produced by each photo were not substantially similar. As a result, Rentmeester did not have a claim against either Nike’s use of the Nike photograph or the illustrious “Jumpman” logo. As the judge colloquially remarked, “Mr. Rentmeester has shot another brick and failed to meet the objective test for copyright infringement.”

Reflections: Balancing Copyright and Freedom of Expression

The conclusion of this case may leave a bitter taste for some. The mega-corporation gets away with stealing the idea of the “little guy.” Indeed, Rentmeester vociferously argued that he was the first one to come up with the idea of photographing Jordan in this unique and unnatural pose. However, copyright law is often at odds with freedom of expression. If Rentmeester could claim rights over all photographs that were similar to the photo he took of Jordan, this could potentially “open the floodgates” to a multiplicity of infringement claims. For example, if one took a picture of an orange tabby cat wearing a pirate hat, that person could potentially prevent other people from taking a picture of their own orange tabby cat wearing a pirate hat. Fear of being sued would potentially stifle artistic freedom and expression. Thus, courts are wary of expanding the domain of copyright despite potential culpability. While in this particular instance it is quite possible that Nike got the idea for its photo from Rentmeester’s and heavily profited from the idea, the law is designed to protect freedom of expression from the potentially overbearing hand of copyright. Ultimately, Nike’s imitation photo is protected by the law. And as they say, “imitation is the sincerest form of flattery.” Unfortunately, for Rentmeester, flattery doesn’t pay the bills. [1] Rentmeester v. Nike, Inc., 2015 U.S. Dist. LEXIS 77468 (D. Or., June 15, 2015). [2] Rentmeester may have refrained from bringing the action at an earlier date, thinking he was barred by the statute of limitations (bringing an action too late). However, in Petrella v. MGM, Inc., a 2014 Supreme Court decision, it was held that a copyright owner can bring suit for ongoing infringement even if the initial infringement was long in the past. 134 S. Ct. 1962; 188 L. Ed. 2d 979; 2014 U.S. LEXIS 3311 (2014).