By Jonathan Zavin and Sara Slavin, of Loeb & Loeb LLP
The 9th U.S. Circuit Court of Appeals has affirmed a district court’s dismissal of copyright infringement action brought by a photographer against Nike Inc., holding that as a matter of law Nike’s “Jumpman” logo did not copy enough protected expression from plaintiff’s photograph of Michael Jordan to constitute unlawful appropriation.
Photographer Jacobus Rentmeester shot a highly original and iconic image of basketball player Michael Jordan for Life magazine in 1984. Shortly after Rentmeester’s photograph was published, Nike hired a photographer to produce its own photograph of Jordan. Nike’s photograph ― clearly inspired by Rentmeester’s ― was used on posters and billboards as part of Nike’s marketing campaign for the Air Jordan brand. Nike also used the photograph to create its “Jumpman” logo, a solid black silhouette that tracks the outline of Jordan’s figure from Nike’s photo. The Jumpman logo has since been used by Nike to market and sell billions of dollars of merchandise.
Rentmeester sued Nike in 2015 for copyright infringement, alleging that both Nike’s photograph and its Jumpman logo infringed Rentmeester’s copyright in his 1984 photo of Jordan. The district court dismissed Rentmeester’s lawsuit, finding that the original photo and Nike’s image were not similar enough to support an infringement claim, given the “thin copyright protection” afforded to photographs. Rentmeester appealed to the Ninth Circuit.
The Ninth Circuit affirmed the district court’s dismissal, holding that Rentmeester’s image and Nike’s image were not substantially similar as a matter of law. The court began by acknowledging that Rentmeester’s photograph captured Jordan in a highly original pose. Although Rentmeester could not copyright the pose itself, the court explained, Rentmeester was entitled to copyright the way the pose was expressed in his photograph ― all a combination of the subject matter, camera angle, timing and shutter speed chosen by the photographer. The court also brushed aside Nike’s argument that photographs, as a blanket matter, are entitled only to “thin” protection. The court held that Rentmeester’s photograph in particular was entitled to the “broadest protection a photograph can receive” because “[t]he range of creative choices open to Rentmeester in producing his photo was exceptionally broad; very few of those choices were dictated by convention or subject matter.”
Nevertheless, the court found that the two photographs were not substantially similar as a matter of law. The court explained that while the photos depicted Jordan in a similar ― and unconventional ― leaping pose, the photos greatly differed in their expression of this pose, sharing only a “general idea or concept.” In particular, the court noted that while Rentmeester had originated the concept of the “grand jeté” pose he asked Jordan to adopt ― a pose that is not usual for a player to take when dunking a basketball ― his copyright did not entitle Rentmeester to a “monopoly” on the concept of the pose ― “he cannot prohibit other photographers from taking their own photos of Jordan in a leaping, grand jeté inspired pose.” Rather, Rentmeester was only entitled to copyright protection for his expression of the pose.
Comparing the photographs, the court concluded that Nike’s photographer had not copied “the details of the pose as expressed in Rentmeester’s photo; he borrowed only the general idea or concept embodied in the photo.” In both photos “Jordan is holding a basketball above his head in his left hand with his legs extended, in a pose at least loosely based on the grand jeté. The position of each of his limbs in the two photos is different, however, and those differences in detail are significant because, among other things, they affect the visual impact of the images.” In particular, “In Rentmeester’s photo, Jordan’s bent limbs combine with the background and foreground elements to convey mainly a sense of horizontal (forward) propulsion, while in the Nike photo Jordan’s completely straight limbs combine with the other elements to convey mainly a sense of vertical propulsion. While the photos embody a similar idea or concept, they express it in different ways.”
The other elements of Nike’s photo were also different. Nike’s photographer had opted for a different background, different lighting and different positioning of the basketball hoop in relation to Jordan, as compared to Rentmeester’s photo. The court concluded that “Nike’s photographer made choices regarding selection and arrangement that produced an image unmistakably different from Rentmeester’s photo in material details — disparities that no ordinary observer of the two works would be disposed to overlook.”
Because the court found no substantial similarity between the two photos as a matter of law, the court also held that Rentmeester’s claims of infringement with respect to Nike’s logo failed. The logo was a stylized version of an element that the court had already found to be not substantially similar across the two photos ― the expression of Jordan’s leaping figure.
The court summarily dismissed Rentmeester’s remaining arguments. First, Rentmeester contended that his complaint should not have been dismissed at the pleading stage because he should have been allowed to take discovery before the district court assessed substantial similarity. The court disagreed: “Nothing disclosed during discovery could alter the fact that the allegedly infringing works are as a matter of law not substantially similar to Rentmeester’s photo.” The court confirmed that cases can be dismissed on grounds of lack of substantial similarity of protectable elements on a motion to dismiss, so long as the court can compare the two works.
Second, Rentmeester asserted that because he made a strong showing with respect to Nike’s access to his photograph, he needed to make only a lesser showing of substantial similarity, the so-called “inverse ratio rule.” The court also rejected this argument, explaining that “[t]he showing of substantial similarity necessary to prove unlawful appropriation does not vary with the degree of access the plaintiff has shown.” The court thus clarified that the inverse ratio rule is only applicable to the analysis of access, not to the analysis of substantial similarity of protectable elements. Finally, the court held that the district court did not abuse its discretion in dismissing Rentmeester’s suit with prejudice, concluding that amending the complaint would be futile because the court had already held that the two works were not substantially similar as a matter of law.
