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Nike Calls 'Jumpman' Copyright Suit An Air Ball

17 March 2015

Nike Inc. on Monday tore into a lawsuit that's claiming the sneaker giant ripped off a copyrighted photo of Michael Jordan for its famous “Jumpman” logo, calling it “exactly the sort of meritless case that motions to dismiss are intended to address.”

Photographer Jacobus Rentmeester sued Nike in January, claiming it used an image he snapped of Jordan for Life magazine in 1984 as the basis of the logo — a silhouette of the basketball legend soaring toward the hoop with all limbs outstretched. The iconic figure has appeared on countless products sold under the shoemaker’s Jordan brand for the past three decades.

Less than two months later, Nike is pushing to get the case booted — saying that “the court need look no further than the photographs and logo themselves to find that they are not substantially similar as a matter of copyright law.”

“Rentmeester's claims are baseless,” Nike said. “Ninth Circuit law is clear that copyright protection for photographs is thin and that infringement can only occur where two photographs of the same subject are virtually identical. Rentmeester falls far short of that standard here given the significant — and self-evident — differences.”

The company says the mood, lighting, setting, expression, color, style, and overall look and feel of the 1984 photo are all different from the logo the company has made famous over the past 25 years.

“Simply put, Rentmeester does not have a monopoly on Mr. Jordan, his appearance, his athletic prowess, or images of him dunking a basketball,” Nike's motion says. “His copyright begins and ends with his specific original expression of that subject and theme.”

Given a recent copyright ruling by the U.S. Supreme Court, it's as notable what Nike's motion doesn't say as what it does.

In years past, Nike might have been able to ditch the case by arguing laches — an equitable doctine that gives judges the discretion to bar legal claims filed after a plaintiff has “slept” on a right to sue for so long that it’s unfair to the defendants. Rentmeester confronted Nike about what he saw as infringement of his copyrights back in the 1980s, but hadn't protested the use of the image since 1987.

But that was before last May’s ruling in the long-running infringement case of Paula Petrella, the daughter of "Raging Bull" author Frank Petrella — a decision that said laches could never be used to bar a claim of copyright infringement so long as it falls within the Copyright Act’s three-year statute of limitations.

Many experts have predicted that the Raging Bull ruling would make it tougher to use laches to defeat long-delayed copyright lawsuits. On Monday, faced with a claim that Rentmeester “slept on” since 1987, Nike didn't invoke the doctrine in in its motion to dismiss.

Not that Nike avoided mentioning the photog's long delay entirely, though.

In Raging Bull, all the justices said was that if new infringements occurred within the three-year window — even after a long delay — they couldn't be defeated by laches. On Monday, Nike asked for a ruling that, at the very least, the court dismiss requests for damages dating further back than three years.

Rentmeester sued on Jan. 22, claiming he was paid $15,000 for a two-year deal allowing Nike to use his image, which he snapped for a special issue of Life magazine highlighting athletes competing at the 1984 Summer Olympics.

After that deal expired in 1987, he says, Nike kept on using the logo and hasn’t paid him anything since.

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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