Nike Files to Dismiss Air Jordan Logo Copyright Lawsuit
Mar 19, 2015
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A lawsuit filed against Nike back in January claimed the Jumpman logo was infringing on the copyright of one of Jacobus Rentmeester’s images of MJ.
The company responded on Monday filing a motion to dismiss the lawsuit immediately, stating the photographer’s complaint “presents exactly the sort of meritless case that motions to dismiss are intended to address”.
Nike claims that its photo, on which the logo silhouette is based, and Rentmeester’s photo are not “virtually identical” as the law requires.
Another motion has been filed asking that the company be exempt from having to reveal details regarding the Jordan brand business.
This motion was filed following Rentmeester’s request for documents relating to Nike’s revenues and profits from the Jordan brand division dating back to 1987, as well as all documents relating to the logo. The requested documents are intended to substantiate his claim that it was his photo that Nike used to create the Jumpman and eventually the division’s logo.
Nike responded that Rentmeester is trying to get Jordan himself involved and also for the company to share any documents between it and the talent from as far back as 1983.
Nike also requested that the discovery stage be delayed until a decision is made regarding its motion to dismiss the lawsuit, in attempt to avoid what its lawyers referred to as “an extensive and burdensome ‘fishing trip’”. In other words they don’t want to reveal the company’s financial information just to later have the case thrown out of court. That’s an understandable request, especially considering the branded division is said to have been behind 58% of all basketball shoe sales in the United States last year, selling an estimated $2.6 billion worth of sneakers.
“Rentmeester cannot state a claim for copyright infringement because the Nike Photo and the Jumpman Logo are not substantially similar to the Rentmeester Photo as a matter of law”, Nike wrote in its response, with the last three words being key – “matter of law”.
The shoes and apparel giant added that Rentmeester’s claims are ‘baseless’ and explained why:
“Ninth Circuit law is clear that copyright protection for photographs is thin and that infringement can only occur where two photographs of the same subject are virtually identical. Rentmeester falls far short of that standard here given the significant—and self-evident differences in the mood, lighting, setting, expression, color, style, and overall look and feel of his photograph, on the one hand, and Nike’s photograph and logo, on the other”.
Basically Nike is saying that its photo isn’t a copy of the licensed image it had previously used because the “mood, lighting, setting, expression, color, style, and overall look and feel” are different. Other than that being a somewhat subjective claim, by turning the photo into a silhouette for the Air Jordan logo, Nike stripped the image of most of the above mentioned characteristics anyway.
I believe this case becomes a lot simpler when you look at the silhouettes of both images side-by-side (below), but Nike added that “poses of subjects are generally not protected by copyright; rather, only the particular expression of the poses is protectable”.
The company continued to state that “Rentmeester’s decades-long delay in filing suit speaks volumes regarding his own assessment of the merits”, and that he does not have a monopoly on Jordan’s appearance, athletic prowess or images of MJ dunking a ball. “His copyright begins and ends with his specific original expression of that subject and theme”.
According to ESPN, Nike didn’t dispute paying to use Rentmeester’s photo; its lawyers are just saying that the image Nike commissioned once it no longer had rights to use the original image is not “virtually identical” as the legal standard requires.
Obviously any law will have a hard time defining anything so subjective, but it seems ridiculous that two photos must be “virtually identical” in order for one to be deemed a right-infringing copy. This is especially true when you consider the fact that Nike’s image was created only after it could no longer use Rentmeester’s original photo.
Also, if a photo is used to create a silhouette, wouldn’t you think it would only be fair to compare it to the silhouette of the photo claiming to be copied?
I’m definitely no legal expert but, while I tend to agree that Rentmeester’s photo was in fact recreated in order to allow Nike free and unlimited rights to his original concept, I’m afraid that taking the law literally will result in the photographer’s defeat.
“This Court need look no further than the photographs and logo themselves to find that they are not substantially similar”, said Nike’s lawyers and I obviously disagree with them. But then they added the six words that strip any room for opinion or common sense – “as a matter of copyright law”.
Hopefully the courts will have the power and desire to at least review the case, despite the plain meaning of the law as Nike presents it, as this seems like a case where justice might not be served otherwise.
It almost feels like getting away with murder due to a technicality, especially when Nike’s motion includes sections titled “Photographs of the Same Subject Cannot Be Substantially Similar Unless They Are Virtually Identical”, “There Is No Copyright Infringement If the Only Similarities Between Two Photographs Relate to Unprotectable Elements” and “If No Substantial Similarity Exists, a Photograph Is Not Infringing Even If the Defendant Intentionally Tried to Recreate It”.
It just doesn’t make sense to dismiss anything “substantially similar” unless it is “virtually identical”. Nike also pretty much says that there are similarities between the photos but they aren’t protected so it’s ok to copy them. Legally maybe, but not morally (yes I know Nike is a business and all it cares about is money, but this doesn’t sit well with me). Then to come and say that even if Nike tried to recreate Rentmeester’s photo it is ok, due to the reasoning above, reminds me of O.J. Simpson’s “If I Did It” book.
Obviously I have no intention of comparing Nike to Simpson or copyright infringement to murder, I’m just pointing out how frustrating Nike’s defense (and the law) is.
Is the law on Nike’s side? Maybe, but I’m not convinced justice is as well.
[via ESPN]
Liron Samuels
Liron Samuels is a wildlife and commercial photographer based in Israel. When he isn’t waking up at 4am to take photos of nature, he stays awake until 4am taking photos of the night skies or time lapses. You can see more of his work on his website or follow him on Facebook.
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14 responses to “Nike Files to Dismiss Air Jordan Logo Copyright Lawsuit”
Anyone notice the thing that looks like shadow on his arm? It couldn’t be a shadow since it’s on the sky, what do you think it is?
That’s the difference between the freeze-frame image the flash creates and the blurred silhouette of the base exposure – which lasted just a bit longer than the flash lasted. So, not a shadow but a “ghost” silhouette.
The shot this logo is based upon was taken by Chuck Kuhn. I assisted Chuck around 1986 and have seen the original. This case will go nowhere.
Hi Nave. The jumpman pose shot by Chuck Kuhn, where was it taken? Name of park?
Nike’s Motion to Dismiss is a pretty typical motion. There is law cited in all such motions that the defense will use to shape its argument. I think this might be more difficult to resolve as a matter of law since there is a factual judgement call to make regarding whether this is a direct copy. I think it is close and this is a very interesting case, but Nike’s motion requires that Rentmeester “failed to state a claim upon which relief can be granted” – the legal standard for a motion to dismiss. As such, it requires that the court take all claims made my Rentmeester as true and determine whether he has alleged facts that, if true, would provide him relief under law for copyright infringement against Nike.
Nike’s first response, before answering the initial complaint, is to file a motion to dismiss. And that’s pretty much a standard move in litigation. Nike sounds confident and absolute because their lawyers are supposed to. If you sound weak in a motion to dismiss, then you haven’t done your job. This is a murky question in copyright law, so I wouldn’t be completely surprised if the court went one way or the other. But my gut tells me that the facts alleged by Rentmeester, if proven to their absolute fullest, might give him at least a win on some counts against Nike. (disclaimer: I haven’t looked over the court documents, just the news reports.)
If Rentmeester gets past this stage, then discovery starts and expect Nike to follow-up with a Motion for Summary Judgment or a settlement offer. One could precede the other, but this could go on for quite some time if Rentmeester makes it past this stage.
For further reading, Carolyn Wright has a nice primer on substantially similar works with several citations to precedent: http://www.photoattorney.com/copyright-infringement-for-substantially-similar-works/
The argumentation of the nike lawyers is poor. If this image comparison should be the only material for their defending strategy then they will loose this case, hopefully also in the states. It seem that they dont understand the idea of copyright law and what it’s protecting. It protects in the first case ideas. Hence, even if you copy a scenery which is similar to an original (especially in this case) you have to ask the owner of the copyright for his permission and usually buy a license.
There are non similarities right but you have to look with an overall view on both images and ask: What is the idea, the statement of the original image? And then:
Adopts the nike image this idea?
Exactly, that is the matter of copyright law, also in the United States. If the judges will not see the law they would change the copyright dramatically.
In the matter of law the adopting of Jordan pose was an “unfree adopting” of an idea where you need the photographers permission.
If the photographer had a legit claim, he would have filed it decades ago, when the Jumpman logo came to be and allegedly infringed on his copyright. DECADES!!! Not just years. Decades. Even if he had a basis for suing, if I were judging this case, I would dismiss it on the ground of laches. The Jumpman logo was no secret to him or anyone when it came out. Maybe the dude could have taken a year or two to build a case. But decades?!? Nope. If I were judge, I’d even make him pay Nike’s attorney’s fees and costs of litigation for this clearly harassment suit. There’s a proper time for everything.
I addressed this point in the previous article (https://www.diyphotography.net/photographers-need-know-nike-sued-stealing-air-jordan-logo/). In a nutshell, there’s a three month period within which you can file for statutory damages and attorney’s fee, but in May 2014 the Supreme Court ruled that a delay in filing a copyright claim isn’t a bar to seeking damages as long as the copyright infringement continues. It’s possible that Renmeester believed it was too late until he heard of this decision.
As far as I know you can’t copyright an idea or a concept. You can only copyright the implementation of that idea or concept. If we’re together taking photos and I take the same photo you took from exactly the same position, and with the same framing/lens/etc we still each own the copyright on our individual images, and one doesn’t trump the other in terms of time.
If that lawsuit is successful it’s going to open the floodgates.
If whoever first photographed a triangle sues then both parties will be in trouble. How generally similar must two shapes be to be the same? Personally I’d never confuse those two silhouettes when compared. The poses have as many differences as they do similarities.
Following the linked articles above, for more information, turns out JR was paid, twice for use rights of the first photo, once 150$ before MJ got famous, and again, $15k after he got famous. Sounds like he wants yet another payout, this time for a photo he didn’t take, because it superficially looks similar to his. He even claims that he inspired the move that MJ made iconic, and therefore he must own copyright to any photo of MJ making that move from here and ever more. I’m surprised he didn’t sue MJ for all the times he dunked the ball like that, and NBA for all the times they broadcast it.
He’s got no case in this instance. Its not his photo. Its barely even his concept. The positioning is different, the background is different (Unless he’s claiming copyright to the sky) and the lighting is different. The Nike photo, although Photographically inferior,(Lighting, shutter sync, etc) is nevertheless Graphically superior as a silhouette and composition, IMO. The inclusion of the skyline speaks volumes more to the target demographic Nike wants than a grassy hill. As a Life magazine profile piece, JR is a superior photo. As Nike, I’d never have used it for marketing. I’d be interested how many shots Nike took before they had the one they liked as opposed to JR’s one off “Lets try something” shot.
The significant aspect of this is that the “move” JORDAN was making (slam dunk) wasn’t some invention/staged posing created by the photographer. It was his iconic dunk from the dunk contest….it wasn’t like the photographer was the only one that captured that move….so to re create the “pose” isn’t copying the photo its copying Jordan’s trademark dunk.
Nike hasn’t gotten a dollar from me since the late 80s. I don’t support companies that sell overpriced junk made in sweatshops. Right or wrong here, the company only has its shareholder’s interests to protect.
Rentmeester didn’t create a silhouette he created a photo of MJ leaping, legs spread, hand and ball up. Compare the alleged infringement against his creation, not his creation with Nike’s creative addition of silhouette. How many thousands of times did we see that pose during MJ’s playing days? The hand and ball up is how you dunk, and legs spread comes naturally when you take off for the basket from a distance. That is the way MJ rolled. The only thing unique is that Rentmeester set this pose against a sky – pretty thin. The Nike pose is much better too, more dramatic with the right hand pointing down and back rather than hidden as in Rentmeester’s and the legs are more straight and dramatic. The photos themselves are also different in that one MJ is facing away from the camera, and in the other toward it, although in silhouette this difference is minimized.However, once it becomes a silhouette that fact that it is even MJ becomes hidden. Does Rentmeester claim ownership of all leaping basketball players?