Sunday, September 24, 2017

Slam Dunk Case for Nike?

Published: February 20, 2015
Image Credit, Nike INC. and Portland Tribune

Jordan, the brand coined by and around Michael Jordan, who is arguably the greatest thing to ever happen to the NBA and undoubtedly the greatest basketball player of all time, has helped turn Nike into a household name that is synonymous with sports and professional athletes.

Jacobus Rentmeester, a freelance photographer, is bringing a copyright infringement claim against Nike in an Oregon federal court. Rentmeester alleges Nike used and continues to use a photograph he created of Michael Jordan for their Jumpman logo. Rentmeester says that in 1984, he took a picture of the then college-aged Jordan in his Olympic warm-ups for an issue of Life Magazine.

Nike later approached Rentmeester about using two 35mm transparencies of the photo for a marketing campaign. Nike paid Rentmeester $150 for the limited use and a few months later Nike gave Rentmeester an additional $500 to continue using the image. In 1985, Nike reshot the Jordan Jumpman photo and Rentmeester threatened to sue, claiming Nike used his work when they recreated the shot of Jordan in Bulls gear with the Chicago skyline in the background. Rentmeester was awarded $15,000 and Nike was given a two-year license to continue using their reshot for billboards and posters in North America. That image became the basis for the modern Jordan logo we all know today. Since the job was a freelance assignment Rentmeester retained the rights to the image.

The lawsuit claims that for the original photo Rentmeester directed Jordan to pose in that specific position while dunking. Rentmeester created the pose, which was inspired by a ballet technique known as a “gran jete,” a long horizontal jump during which a dancer performs splits in mid-air. The pose was conceived to make it appear that Jordan was in the process of dunking, but the pose is not reflective of Jordan’s natural jump or dunking style. Rentmeester declares Jordan practiced the desired leap because it was an unnatural move for him since he typically held the ball with his right hand.

That logo first appeared on a pair of shoes in 1987 for Nike’s third version o the Air Jordan. Nike has since trademarked various of the logo, in 1989, ’92, and ’98.

Rentmeester is asking for profits associated with the Jordan brand, which generated $3.2 billion in retail sales in 2014, and is also seeking to stop current sales and end any plans in the brand’s future. “Nike spokesman Greg Rossiter told The Associated Press that the company is not commenting on the lawsuit.” 

Federal copyright law allows copyright claims to be brought within three years of an infringing act.  In May 2014, the U.S. Supreme Court in Petrella v. MGM ruled that delay in filing a copyright claim isn’t a bar to seeking damages as long as the copyright infringement continues. 

Bert P. Krages is an Oregon-based attorney specializing in intellectual property law and photographers’ rights.

His opinion in Rentmeester’s claim is “One of the elements of copyright infringement is that an ordinary observer would have to find the works to be substantially similar.”

At one level, the Nike photo and logo are similar to the Rentmeester photo in that they depict a basketball player in midair with extended legs and holding the ball high over his head with his left arm.

On the other hand, the Nike photo and the logo show Jordan with straight legs and arms whereas the Rentmeester photo shows some curvature in the legs and left arm. Also, in the Rentmeester photo the right arm is held near shoulder level instead of at waist level.

So the major issue in this case could come down to whether the Nike photo and logo are seen substantially as copies or as independently-created variations of a jumping basketball player.

[1] Darren Rovell, Nike Sued Over Michael Jordan Logo, ESPN (Jan. 23, 2015, 10:37 PM), http://espn.go.com/nba/story/_/id/12218091/photographer-sues-nike-michae....

[2] 17 U.S.C. § 507(b) (2014).

[3] Petrella v. MGM, 134 S. Ct. 1962, 1967 (2014).