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Nike ‘Jumpman’ Copyright Suit Tossed By Judge

16 June 2015

An Oregon federal judge on Tuesday dismissed a lawsuit claiming that Nike Inc. ripped off a copyrighted 1984 photo of Michael Jordan for the iconic “Jumpman” logo it has used on billions of dollars' worth of products.

A side-by-side comparison shows Michael Jordan depicted in Jacobus Rentmeester's photo, left, and Nike's iconic "Jumpman" logo. (Credit: Court Documents)
Photographer Jacobus Rentmeester sued in January, claiming that Nike used an image he snapped of a young Jordan for Life magazine to create its own photo that formed the basis of the famed logo — a silhouette of the basketball legend soaring toward the hoop with his limbs outstretched.

But in a Tuesday ruling full of basketball puns, U.S. District Judge Michael W. Mosman said that Rentmeester's photo was worthy of only the narrowest copyright protection, meaning that Nike's photo would have had to be a nearly identical reproduction to infringe it.

The judge, applying that minimal level of protection to Rentmeester's image, said that Jordan's soaring pose and other protectable elements in each photo were simply not similar enough for finding that Nike had infringed the older image.

“Although at first glance there are certainly similarities between the two expressions of the pose, a closer examination reveals several material differences,” the judge wrote. “In the context of thin or very close to thin copyright protection, these differences lead me to find that the poses are not substantially similar because they are not virtually identical.”

As for the iconic logo that Nike derived from the photo, Judge Mosman said that the same logic applied, and that “Mr. Rentmeester has shot another brick.”

He was careful, though, to avoid creating a hard-and-fast rule that poses in photos should automatically be afforded the kind of thin copyright protection that he gave Rentmeester's.

“I am unconvinced by [case law] that photographs of ideas involving a specific pose always involve such a narrow range of expression as to merit, categorically, only thin protection,” the judge wrote.

Instead, courts should do a case-by-case analysis guided by the Ninth Circuit's approach in its high-profile 2010 ruling in Mattel Inc. v. MGA Entertainment Inc., the judge said.

In that case, the appeals court said that since there are “gazillons” of ways to express an idea such as an alien invasion, a screenplay for an alien attack movie should get broad copyright protection. The reason: It's easy for other screenwriters to write their own alien movies without overlapping with the original.

But since there are only a few ways to express a simple idea such as a bouncing red ball on a white canvas, a photograph of that scene deserves only narrow protection. The reason: It's tough for other photographers to express the idea without overlapping, giving the original copyright holder an unfair monopoly on an unprotectable idea.

Under that approach, Judge Mosman said that there were relatively few ways that a photographer could have snapped a picture of Jordan dunking a basketball.

“I think the idea in this case is closer to the idea of red bouncy ball on a canvas than to the very broad idea of an aliens attack movie and therefore it receives only thin protection,” he wrote, referencing the wording of the Mattel ruling.

The ruling dismisses the case entirely.

An attorney for Rentmeester didn't immediately return a request for comment on Tuesday.

Rentmeester is represented by Cody B. Hoesly of Larkins Vacura LLP, and Eric Fastiff, Dean Harvey and Katherine Benson of Lieff Cabraser Heimann & Bernstein LLP.

Nike is represented by Eric C. Beach and Jon P. Stride of Tonkon Torp LLP, and Dale M. Cendali and P. Daniel Bond of Kirkland & Ellis LLP.

The case is Jacobus Rentmeester v. Nike Inc., case number 3:15-cv-00113, in the U.S. District Court for the District of Oregon.

Dale Cendali, P.C.

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