The Ninth Circuit recently decided that plaintiff Jacobus Rentmeester did not have the slam dunk copyright infringement case he thought he did against Nike. Rentmeester alleged that Nike misappropriated his photo of Michael Jordan when the brand commissioned a similarly posed photo, and when designing its Jumpman logo.
Rentmeester’s photo was taken in 1984, when Jordan was a student at the University of North Carolina. Nike’s photo was commissioned less than a year later, when Jordan was playing for the Chicago Bulls. Nike then made the Jumpman logo in 1987 based off the iconic image.
In a copyright infringement lawsuit, there are basically two things that need to be established for the plaintiff to get the W. The first is that the plaintiff owns a valid copyright. And the second is that the defendant copied the plaintiff’s work (without their permission). Proving someone copied someone else is not as easy as it sounds. The easiest way is with the substantially similar test, which is meant to do exactly what it sounds: determine if the two works are similar enough to show there was a copycat in the midst.
Here, the Court found the works were not substantially similar. Before you order new glasses, keep in mind that the major thing depicted in the photo is a pose, which is not something Rentmeester has a copyright for. While Rentmeester does have a valid copyright to his photo, the Court noted that that fact alone does not give him a monopoly on the pose. Thus, looking at all the other elements such as the lighting and background it is clear that there are differences.
Judge Paul Watford explained, “Copyright promotes the progress of science and the useful arts by encouraging others to build freely upon the ideas and information conveyed by a work.” So, if we let people own the copyright to things like poses, image how hard it would be to get a good gram!
As with any case, things are never as easy as they seem, and it seems the only person with a slam dunk here is Jordan.