A federal court in Portland, Oregon has dismissed photographer Jacobus “Co” Rentmeester’s copyright infringement claim against Nike for the same reason so many “copycat” infringement claims fail: Copyright law doesn’t protect ideas, only the expression of those ideas. And Nike’s expression was not “substantially similar” to Rentmeester’s, the court ruled.
“Mr. Rentmeester has failed to show that he can satisfy the requisite objective test for copyright infringement,” US District Judge Michael W. Mosman wrote in his decision last week to dismiss the case. Rentmeester has filed papers announcing his intent to appeal the decision to the US Court of Appeals for the Ninth Circuit.
At issue in the case were Nike’s famous Jordan Brand 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.” 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. Nike created the Jordan Brand logo in 1987, and has used it ever since.
In evaluating Rentmeester’s infringement claim, Judge Mosman noted that the test for substantial similarity between two images cannot be based on the similarity of unprotected elements. Ideas, he said, are not protectable. Only the expression of the idea is protectable.
“The idea Mr. Rentmeester tried to express in his photograph was that of, ‘Michael Jordan in a gravity defying dunk, in a pose inspired by ballet’s grand-jeté,'” Mosman wrote in his analysis. He went on to say there are relatively few ways to express that idea, so Rentmeester’s photograph is entitled to only “thin protection.” In other words, other images would have to be nearly identical to Rentmeester’s to be considered infringing. (Courts give “thin protection” to images based on ideas that can be expressed in only a few ways, in order to avoid giving photographers a monopoly on the idea.)
According to the written decision, the unprotected elements of Rentmeester’s photograph, besides the idea, included “the basketball hoop, the basketball, a man jumping, Mr. Jordan’s skin color, and his clothing.” Rentmeester sought protection for his selection and arrangement of the unprotected elements, but the judge rejected his argument.
“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,” Mosman explained. (“Scenes a faire” are standard features of an idea, and are also considered unprotectable elements.)
Rentmeester argued that Jordan’s pose–a grand-jeté leap–was a protectable element of his photograph. But Judge Mosman said even if that was a protectable element, the pose of Jordan in the Nike advertising photo and in the Jordan Brand logo were substantially different from Jordan’s pose in the Rentmeester photo. Specifically, Jordan’s arms and legs are positioned differently, Mosman explained in his decision.
The judge went on to say the colors and element of the background of the Nike photograph were different from those of the Rentmeester photograph. The only similar protectable element between the Nike photo and the Rentmeester photo, the judge said, was the camera angle. And even the similarity of camera angles was overcome by the difference in Jordan’s relative size and placement in the frame, the judge wrote. In the Rentmeester photo, Jordan appears smaller and is further to the left.
“It would be a stretch of the imagination to call [the photographs] similar at all. Other than the similar perspective, there are few if any similarities” between protectable elements, the judge wrote.
Mosman used the same analysis and reasoning to dismiss Rentmeester’s claim that the Jordan Brand logo was infringing.
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