Jumpman Pose Survives Copyright Infringement Claim - Rentmeester v. Nike, Inc.
Jacobus Rentmeester once asked Michael Jordan to pose like a ballet dancer. The resulting pose is now one of the more recognizable logos in the world. But, on March 25, 2019, the Supreme Court denied review of Rentmeester’s copyright infringement claim against Nike, allowing the 9th Circuit’s dismissal to stand and confirm just how difficult it can be to claim a photo was unlawfully copied. (Note: this issue involves one image replicating another, not Nike’s use of Rentmeester’s actual photograph.)
In 1984, Rentmeester took a photograph of Jordan for Life Magazine based on ballet’s grande jete pose. Rentmeester kept ownership of the photo, and granted Nike a limited license for $150 to use the photo “for slide presentation only” around the time Nike was preparing its partnership with Michael Jordan.
Nike subsequently made its own photograph, which was “obviously” inspired by Rentmeester’s – similar angle, similar pose. But, the Chicago skyline was in the background, Jordan wears apparel of his new team and is positioned slightly different. Nike then based its “Jumpman” logo on the second photograph.
In January 2015, Rentmeester filed for infringement; pleading around laches by only claiming infringement during the Copyright Act’s three-year limitation period. Nike filed a motion to dismiss.
The Court focuses on the extrinsic test, which “filters out” elements of the work that can’t be copyrighted – ideas, public domain material, stock/standard features, etc. For this point, the court notes that photographs are different from other works. On one hand, film, for example, has many protectable elements that can be objectively compared, including plot, themes, and dialogue. Photographs, on the other hand, have objective elements, including lighting, composition, pose, and camera angle, which, like a photo’s subject matter, cannot be owned by a single photographer.
For poses specifically, prior cases have noted that a pose itself cannot be copyrighted (think: a portrait or a stock photo of co-workers). The court notes that the photographer “is entitled to protection only for the way the pose is expressed in his photograph: a product of not just the pose but also the camera angle, timing, and shutter speed.” That “selection and arrangement” of otherwise unprotected elements, if sufficiently original, receives protection as a whole. The court compares it to an author of a factual compilation who can claim protection for the arrangement but not the facts.
Ultimately, the court concludes that the works are not substantially similar, given that Rentmeester and Nike each made a series of creative choices in the selection and arrangement. Notably, Rentmeester does not have a “monopoly” on the concept of Michael Jordan in a leaping pose inspired by grand jete, and 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.” On that same basis, the court quickly notes, the Jumpman logo is also non-infringing.
Full Opinion: Rentmeester v. Nike, Inc.
