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Jul 29 2015

Nike “Jumpman” Case Shows Difficulty With Copy-Cat Infringement Cases

A Federal Court in Oregon dismissed photographer Jacobus Rentmeester’s claim that Nike’s famous “Jumpman” infringed on his original photograph which inspired the logo. The case doesn’t really break new ground nor is it very controversial; the judge correctly applied the proper legal parameters in my opinion. I’m writing about it though because it’s the kind of case that seems so strong to a layperson or even to a lawyer who does not engage in intellectual property litigation. But the decision shows the limits to copyright’s reach and the importance of understanding the difference between an idea and a particular expression of an idea. In summary, the first one is not copyrightable, the second one can be.

At issue in the case were the iconic Jordan Brand “Jumpman” logo, which is a silhouette of basketball star Michael Jordan leaping dramatically with a basketball; and a photograph of Jordan in a similar pose, which Nike produced in the mid 1980s for use on billboards, merchandise, and in advertising.
Both images were inspired by a photograph Rentmeester shot of Jordan for LIFE magazine, and then loaned to Nike in 1984 “for slide presentation only” for a cost of $150. Here is the original image:

Photog's original image

Photog’s original image

Nike liked the image so much they decided seven months later to create their own photo based on the image and splashed it everywhere. When the photographer complained, Nike ended up paying Rentmeester $15,000 for a two-year license to use the photograph it produced on the basis of Rentmeester’s image.
But the company continued to use its photograph after the license expired. In fact, Nike created the Jordan Jumpman logo in 1987 based on their picture, and has used it ever since. Here are Nike’s images:

Nike's Jumpman Logo

Nike’s Jumpman Logo

Nike's Jordan Photo

Nike’s Jordan Photo

So you can see the general similarities and Nike never denied its logo and the image it used to create the logo were inspired by Rentmeester’s shot. Rentmeester decided to sue Nike for its continued use of the Nike images based on his image. He claimed that the original image was his unique creative expression and that Nike had made two derivative copies of the image. Rentmeester set out to explain to the court how he created the image, which is pretty interesting (at least to me) but is also important for the understanding of the case because all of the creativity he expressed and all the skill required to get the shot just right did not get him any protection for the work he produced:

As part of a series of photographs for a 1984 issue of LIFE Magazine,Rentmeester planned and executed a photo shoot with then North Carolina student Michael Jordan. Mr. Rentmeester decided to shoot Jordan outdoors in an non-traditional pose. He took the photo on a relatively isolated grassy hill with no visual distractions other than the setting sun and a basketball hoop he had temporarily installed on the hill. For the pose, Mr. Rentmeester instructed Mr. Jordan to jump straight up and perform a grand jeté, a ballet leap, while holding a basketball. Mr. Rentmeester claims he was the first person ever to photograph Mr. Jordan, or any other basketball player, in this specific pose. Mr. Rentmeester believed that a photograph “with Mr. Jordan extending his non-shooting left arm straight and forward, triumphantly holding a basketball (as the tip of a crown holds a jewel), and framing the shot with Mr. Jordan appearing to glide away from the earth and toward a basketball hoop . . . would be powerful, compelling, and unique.” Mr. Rentmeester argued that the creative genius of the pose, and the overall construction of the image, is to trick the viewer into thinking that Mr. Jordan is actually performing a dunk when in fact he is not. In order to accomplish his creative goals, Mr. Rentmeester positioned his camera at an approximate 90-degree angle to the apparent trajectory of Mr. Jordan’s leap and slightly below Mr. Jordan, creating a perspective for the viewer of looking up at Mr. Jordan’s fully extended body. Mr. Rentmeester captured the precise detail of Mr. Jordan’s jump with a combination of a very rapid shutter speed and powerful synchronized strobe lights. So this was clearly, a highly skilled photographer who had thought out a very creative and interesting way to photograph a basketball player.

LIFE Magazine published the Rentmeester Photo in a special Olympic preview issue at approximately the same time that Nike was preparing to launch its endorsement relationship with Mr. Jordan. Nike contacted Mr. Rentmeester and the rest is history – or misery if you’re Rentmeester.

The court had to first determine what was the core “idea” expressed by the image and then had to determine whether the Nike pictures were “substantially similar.” The court agreed with Nike’s position at oral argument that the complaint makes clear that the idea expressed in the photograph was that of, “Michael Jordan in a gravity-defying dunk, in a pose inspired by ballet’s grand-jeté.” OK , specific enough for you?

The court said that since there are really only a few ways to express this idea, a single version of the idea is only entitled to “thin protection.” For example, think if you wanted to express a hula dancer doing a typical hula dance – there are only a few ways to express that so any expression of that would look like a copy, so its not very protectable. Here, the specificity of the idea came back to haunt Rentmeester in a way. It doesn’t matter how creative the “idea” was – a very creative idea is no more protected than an uncreative idea- its still just an idea. So now its merely a question of whether the images are substantially similar expression of that idea. And they are clearly not – Here they are side-by-side:

jumpmancompared

You can see that the lighting is different, one is almost a silhouette, the other is lit; the poses are different, the arms are bent differently as are the legs; one is on a hill, they other shows an urban landscape in the background; one is at a distance, the other is closer up. Remember that since the court decided the idea is entitled to only “thin protection” that the image would have to be “virtually identical” to be infringing. The Court went further to say that in reality there was nothing very original in the work saying that most of it was based on traditional elements that go together (in law these are called scenes a faire and are not protectable (In our hula girl example, think a grass skirt, a floral lei, and long black hair). Of the image the court stated:

I find that very little of the selection and arrangement is original. The idea in the Rentmeester Photo is, “Michael Jordan in a gravity-defying dunk, in a pose inspired by ballet’s grand-jeté.” Given this idea, there is nothing original about the selection and arrangement of having a Michael Jordan jump with a basketball in the vicinity of a basketball hoop—that is all scenes a faire for the idea at issue. The only arguably original part of Mr. Rentmeester’s selection and arrangement is that the photograph was taken outside as opposed to inside a gym. However, given that a lot of basketball is played every day by would-bes, has-beens, and never-weres in driveways and outdoor courts at neighborhood parks, even this element of selection and arrangement is not all that original. Therefore, to the extent Mr. Rentmeester seeks protection for his selection and arrangement of the various unprotected elements, I find that he is either entitled to no protection or such little protection that it has no material impact on the substantial similarity analysis.

The court gave even shorter shrift to any comparison between the Jumpman logo and Rentmeester’s image dismissing the claim in basically one sentence: The only similarity between the Rentmeester Photo and the Jumpman Logo is the pose—the Jumpman Logo is nothing more than an expression of the pose No substantial similarity, no claim.

It’s ironic that the Jumpman logo is of course very protecetable as a trademark – it is so associated with Nike that any other logo that comes close to the Jumpman would likely be infringing on Nike’s trademark. But trademark and copyright are very different animals.

So the case is a cautionary tale for all those who think they have a great case because some big company “stole their idea” – a call we get at my law firm about twice a week. I even had a few sophisticated design clients who were showing at Men’s Fashion Week here in NYC this month and I had to advise them that unless their designs are ultimately their “trademarks,” it doesn’t matter how creative your design idea is – it’s just an idea. That means most people who want to create their own version of your idea can “Just Do It.”

Read the case HERE

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