Court of Appeals for the Ninth Circuit in a 2-1 vote found Rentmeester’s photo artistic enough to merit “the broadest protection a photograph can receive.” But its decision laid out a number of differences Nike introduced-including a background of the Chicago skyline and dusk sky colors, and slight differences in the pose-to clear Nike. The district court said that expression of the NBA star’s grand jeté could be protected, but that Nike’s version of it would’ve had to be “virtually identical.” The judge cited slightly different angles of limbs to conclude that it was not. That essentially left Jordan’s pose, positioning, and angle. The court dismissed the case, finding the two images were not “substantially similar.” The opinion stripped nonprotectable elements of Rentmeester’s image and elements of Nike’s that didn’t match it.
District Court for the District of Oregon. Rentmeester waited until the end of his commercial photography career before suing Nike in 2015 in the U.S. Jordan, his shoes, and Nike would remain economic juggernauts for decades. Nike broke those limitations as well, he alleged.
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When Rentmeester complained, he said Nike paid him $15,000 for a two-year, North America-only license for posters and billboards. The photojournalist said he allowed Nike to use the photo “for slide presentation only” but said the company instead commissioned the derivative for its ad campaign around its expensive new pitchman for Air Jordan shoes. Nike asked Rentmeester for the image shortly after it appeared in a photo essay ahead of the 1984 Olympics, he said in his lawsuit. That image later evolved into the still-ubiquitous “Jumpman” silhouette logo. He said Nike used it to stage another photo, changing details but not the image’s core layout, creative choices, and purpose. Rentmeester snapped his staged picture of Jordan flying toward a basket in a ballet-style grand jeté pose for Life Magazine. The question for the justices is how closely compositional arrangements and creative elements in a photo must match to create infringement. Nike’s media representative did not immediately respond to an email request for comment, and Nike’s lawyers in the case did not immediately return a call by Bloomberg Law.
“Nike just decided, ‘We’re going to recreate the image.’ I have a real problem with that,” Mickey Osterreicher, general counsel for the National Press Photographers Association, told Bloomberg Law. The case is being closely watched by photography organizations, who have waged endless copyright infringement battles over stolen photos and say a win for Rentmeester would be a win for all photographers. 3 petition to the high court pointed to an 1884 Supreme Court ruling involving an Oscar Wilde portrait that held photography as equal to the other creative fields. The Supreme Court, if it takes the case, could clarify when elements in photos deserve the same level of copyright protection as aspects of music, paintings, and literature. Supreme Court to draw the line between when two pictures are just similar and when one is a rip-off. of pilfering his 1984 picture of Michael Jordan to create its iconic “Jumpman” logo wants the U.S.
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