The Nike shoe company has asked a federal court to dismiss photographer Co Rentmeester’s copyright claim over the iconic logo used on Jordan brand sneakers and clothing, on the grounds that the Nike logo is substantially different from Rentmeester’s photo of former basketball star Michael Jordan.
Rentmeester says the company illegally created its so-called “Jumpman” logo from a photograph Rentmeester shot in 1984. Nike, which has used the logo for more than 25 years, called Rentmeester’s claim “baseless.” The company is accusing Rentmeester of trying to claim a monopoly on images of Jordan’s trademark slam-dunk move. And Nike argues that its iconic logo copied none of the “protectable” elements of the Rentmeester photograph–ie, camera angle, lighting, background and other elements of expression that are protected by US Copyright law.
Rentmeester filed his copyright infringement claim in January in US district court in Portland, Oregon. He alleged that Nike had based its “Jumpman” logo on an image made by the company that illegally copied Rentmeester’s 1984 photo. Rentmeester had made his image for Life magazine. His image, the Nike “copy” image and the Nike logo all depict Jordan in a move for which he was famous: sailing through the air on his way to slam dunking a basketball.
Nike had temporarily licensed the Rentmeester image in 1984. Rentmeester alleges that Nike copied the image while it was in the company’s possession. He also says Nike paid him $15,000 in 1985, after he complained Nike was infringing his photograph by plastering the “Jumpman” logo all over billboards and posters promoting Air Jordan sneakers. The payment allowed for use of the image for two years in North American markets only, according to Rentmeester’s claim, but Nike has continued to use it ever since.
In its motion for dismissal, Nike asserts that federal case law has established that infringement “can only occur where two photographs of the same subject are virtually identical” [Nike’s emphasis].
“Rentmeester falls far short of that standard here given the
significant—and self-evident differences in the mood, lighting, setting, expression, color, style, and overall look and feel of his photograph, on the one hand, and Nike’s photograph and logo, on the other,” Nike says in its motion.
The dispute boils down to a question of whether Nike copied the idea behind Rentmeester’s image, or whether it copied Rentmeester’s execution. Under US Copyright law, ideas are not protected. Only the execution of an image–lighting, camera angle, setting, etc–is protected.
“Simply put, Rentmeester does not have a monopoly on Mr. Jordan, his appearance, his athletic prowess, or images of him dunking a basketball—his copyright begins and ends with his specific original expression of that subject and theme…[He] cannot show that Nike copied any protected expression,” the company said in its brief.
Nike went on to cite a number of unsuccessful claims by other photographers who mistook unprotected elements of their photographs (such as ideas and/or inherent qualities of a subject) for the protected elements. Among the cases cited were Kaplan v. Stock Market Photo Agency, Mannion v. Coors Brewing Company, Harney v. Sony Pictures Television, and Bill Diodato v. Kate Spade.
Nike also said, “Rentmeester’s decades-long delay in filing suit speaks volumes regarding his own assessment of the merits.”
Rentmeester is seeking statutory damages for the alleged infringement, but Nike alleges that he is ineligible for such damages because he did not register his copyright to the image in a timely manner. According to Nike, Rentmeester registered his copyright in December 2014, shortly before he filed his claim.
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