Copyright Action Against Nike Dismissed

On February 27, 2018, in Rentmeester v Nike, Inc, the United States Court of Appeals for the Ninth Circuit (Court) affirmed the dismissal of a copyright infringement action brought by a photographer, Mr Jacobus Rentmeester, against Nike, Inc.

Rentmeester had photographed basketball legend Michael Jordan for a 1984 feature in Life Magazine. Nike, at the time, was planning an endorsement deal with Jordan and contacted Rentmeester in order to secure rights for use of this photo. Nike and Rentmeester agreed to a limited licence. Nike later took a similar photo which it used to market the Air Jordan brand and create the famous Jumpman logo.

Mr Rentmeester alleged that Nike, by commissioning its own photograph of Jordan, infringed the copyright in his photograph. At the district court level, Rentmeester’s action was dismissed. The District Court of Oregon held that neither Nike’s photograph of Jordan nor the Jumpman logo infringed copyright in Rentmeester’s original photograph. Rentmeester appealed the decision to the Court.

According to the Court, in order to establish infringement, Rentmeester had to prove that:

1. he owned a valid copyright in his photograph;

2. the photograph was copied; and

3. enough of the protected expression was copied to establish unlawful appropriation.

   Rentmeester successfully established the first two elements: that he had a valid copyright and that his photograph was copied. With respect to the third element, Rentmeester failed to establish that Nike copied enough of the protected expression to amount to unlawful appropriation. The Court found that Rentmeester was not entitled to copyright in the pose, but only in the way that the pose was expressed. Since there were substantial differences in the selection and arrangement of elements within the photograph, the Court found that Nike’s photo and Jumpman logo did not infringe upon Rentmeester’s copyright.

   Additional commentary is available here.

Summary By: Jae Morris