‘Jumpman’ Lawsuit Focuses on Scope of Copyright Prosecution for Photographs

Who knew that the most famous image of the greatest basketball player of all time was inspired by a Nureyev-like ballet move called a grand jeté? The basketball player, of course, is Michael Jordan and the image is the ubiquitous silhouette that can be seen on every pair of Air Jordan shoes. It has become known as Nike’s “Jumpman” logo and it has served as a Nike trademark since 1987. Brand Jordan has been a significant element of Nike’s amazing success over the past quarter century. In 2014, Nike’s Basketball Division, of which Brand Jordan is a large part, had revenues of $3.2 billion. Though MJ scored his last NBA points on April 16, 2003, he still has the mystique that sells shoes.

The Jumpman has a history that Nike would prefer had remained on the sidelines but has now taken center court. The origin story is told in a copyright infringement lawsuit filed in January by Jacobus Rentmeester against Nike in the federal district court in Oregon. Rentmeester is a photographer who in 1984, before Jordan had ever donned a Bulls uniform, created a photograph of Jordan that Rentmeester now claims is the image that Nike transformed into advertisements and eventually the Jumpman logo. Rentmeester claims that Nike’s use of the image for the past thirty years was without his permission and thus constitutes copyright infringement.

Before you dismiss Rentmeester as another delusional plaintiff going after a deep pocket, be aware that there is some history between Rentmeester and Nike. But first it is necessary to answer the burning question that is no doubt on your mind — how could the photographer sue now for an infringement that began when Michael Jordan still had hair? The answer is found in the Supreme Court’s “Raging Bull” case, Petrella v. MGM, decided last year. In that case, involving the award-winning 1980 movie “Raging Bull,” the Supreme Court ruled that a claim of copyright infringement brought eighteen years after the claim arose was not barred by the equitable doctrine of laches so long as some acts of infringement occurred during the three years before the filing of the suit. The Copyright Act’s statute of limitations is three years from the time the claim accrues, and the Court ruled that under the “separate accrual rule” each successive infringing act of infringement starts a new three-year period. If the plaintiff only seeks relief for acts of infringement that occurred during the three year period prior to suit, the suit cannot be dismissed on the basis of the laches doctrine. This ruling has given new life to dilatory plaintiffs like Rentmeester for infringements that began decades ago but are still occurring.

Returning to the pre-history of Jumpman, Rentmeester had been retained by LIFE Magazine to do a photo essay featuring athletes preparing to represent the United States in the 1984 Olympics. Jordan, who had just finished his sterling career at North Carolina, was one of the stars of the 1984 squad, the last all amateur U.S. Olympic men’s basketball team.

Rentmeester says that before he even arrived in Chapel Hill to create the photograph, he had conceived the central creative elements of the photo. He wanted to “maximize visual attention on an isolated picture of Mr. Jordan,” so he decided the picture must be outside with a background of sky. He wanted to depict Jordan “leap[ing] through the sky and appear[ing] to soar elegantly.” To do this he posed Jordan in a manner inspired by the ballet technique known as agrand jeté, in which a dancer leaps high and essentially performs the splits in mid-air.

Rentmeester emphasizes that his image does not depict Jordan’s natural jump or his dunking style. His photo shows Jordan (who is right-handed) with his left leg forward, the ball in his left hand, his body open and facing the camera rather than the hoop, his limbs extended outward. The lowering sun and adept use of a strobe lighting technique allowed Rentmeester to create a photo with a “sharp and compelling silhouette of Mr. Jordan against a contrasting clear sky.”

What does this have to do with Nike and how can this be infringement? There are innumerable photos of MJ soaring through the air ready to dunk a basketball, not the least of which are some wonderful shots of MJ’s famous free-throw line dunk during the 1988 NBA dunk contest.

This is where the story gets interesting (although according to Nike, legally irrelevant). In the months after Rentmeester’s photo appeared in LIFE Magazine, Nike contacted him and requested two slides of the image to use for a “slide presentation only,” promising “no duplication.” Rentmeester agreed and received a fee of $150.

Not long after that, Nike launched advertisements with a new photo of Jordan in what one might call the Jumpman pose–legs splayed, left leg forward, ball in his left hand, body open and facing the camera, with a clear sky in the background.

Rentmeester complained and Nike agreed to pay him $15,000 for a two year license to use Nike’s photo only on posters and billboards in North America. In 1987, apparently more confident of Jordan’s star power, Nike launched the Jumpman logo, now seen around the world and famous as a Nike brand.

We don’t know what Rentmeester was thinking all these years or why he did not sue until 2015. We do know that the suit raises interesting and difficult issues as to the scope of copyright protection in photographs.

Nike argues that there should be only a very narrow scope of protection, and that photographs of the same subject matter cannot be substantially similar unless they are virtually identical. (While that might be true for a picture of Mount Rushmore, one might question whether it should be true of Jordan doing a grand jeté).

Nike also says that while there may be some similarities between its Jumpman and Rentmeester’s image, there is no infringement if the only similarities arise from unprotectable elements of a photo, such as the idea. Copyright does not protect ideas, only the way ideas are expressed. Nike relies on cases such as Bill Diodato Photography v. Kate Spade LLC(S.D.N.Y. 2005) and Kaplan v. Stock Market Photo Agency, Inc. (S.D.N.Y. 2001), both of which basically found that the subject matter of a photo was an unprotectable idea.

A more nuanced treatment of the scope of copyright for photographs is seen in Mannion v. Coors Brewing Co. (S.D.N.Y. 2005). The court highlighted the analytical difficulty of identifying the “idea” of a photo. The distinction between idea and expression, which arose in the context of literary copyright, is less appropriate when dealing with photographs. “It is not clear that there is any real distinction between the idea of a work of art and its expression. An artist’s idea, among other things, is to depict a particular subject in a particular way.” The court also pointed out that originality may inhere in the photographer’s “creation of the subject” to be photographed.

Nike has filed a motion to dismiss the complaint, claiming that there is not infringement as a matter of law. It will be interesting to see whether the district court will apply the narrow approach of Diodato and Kaplan, and take the question out of the hands of the jury, or in a jurisprudential grand jeté leave the issue of substantial similarity to a jury of reasonable Oregonians.