If you’ve been following the sports, economic or photography news, you’ve probably heard about the photographer suing Nike for violating the copyright of one of his Michael Jordan images, while creating the famous shoes and athletic clothing brand.
Obviously the lawsuit made headlines due to it involving one of the most powerful sports brands and the greatest player to have held a basketball. I mean, such violations occur on a daily basis. So strip the story of the big names, and aren’t we left with just another boring copyright case? Absolutely not, and that’s what I believe most photographers have been missing.
Let’s begin by explaining the case at hand, and then we’ll get to how Rentmeester filed a lawsuit after 30 years.
A BIT OF HISTORY
Back in 1984 Jacobus “Co” Rentmeester was a freelancer for Life magazine, which had him take photographs for an essay titled “American Excellence”. The essay, part of the magazine’s special section for the 1984 Olympic Games, included Rentmeester’s photos of several athletes including Carl Lewis and the-then University of North Carolina student and Team USA player, Michael Jordan.
You might not have seen this photo before, but something about it will most likely seem familiar. Here is Rentmeester’s 1984 photo of MJ:
According to the lawsuit, Nike paid the photographer $150 that same year for temporary use of two transparencies of MJ’s photoshoot for Life. It also mentions that the images were later returned in order to avoid having to pay an additional $500.
Within six months, however, Nike no longer needed to use Rentmeester’s photo as they had taken a similar photo of Jordan.
Here’s Nike’s 1985 photo of Jordan:
This photo might seem familiar due to the similarity to the previous photo and the famous Air Jordan logo. If you were around back then, you might also remember seeing the photo on billboards, Air Jordan’s etc.
The lawsuit, filed Thursday and reported by The Oregonian, states that Nike was contacted by the photographer as soon as he found out about the new photo. Nike wouldn’t speak to him and “only responded to his repeated requests when Mr. Rentmeester threatened litigation”.
This might seem strange to you, as the soaring Jordan logo is so widely recognized today as Jordan’s signature jump, but the lawsuit explains this was a move never performed by Jordan prior to the 1984 shoot:
“Over approximately one half hour, Mr. Jordan practiced leaping according to Mr. Rentmeester’s instructions. The pose differed substantially from Mr. Jordan’s natural jumps, during gameplay or otherwise (for instance, Mr. Jordan typically held the basketball with his right hand), and required practice and repeated attempts. Mr. Jordan was enthusiastic and a quick study. Mr. Rentmeester photographed Jordan at the apex of his “grand jeté” leaps, using a Hasselblad camera with 6x6cm film, with powerful strobe lights that required specialty outdoor electricity generators to power. The large strobe lights allowed Mr. Rentmeester to photograph Mr. Jordan with the sun shining directly into the lens, creating a sharp and compelling silhouette of Mr. Jordan against a contrasting clear sky”.
One month later, following his threats to take legal action, Nike paid Rentmeester $15,000 in exchange for a two-year limited license to use the photo.
The lawsuit adds that Nike continued to use the photo for marketing purposes after the agreement had expired, and even used it to create the famous logo in 1987.
The lawsuit was filed by Rentmeester rather than Life magazine as, working as a freelancer, he owns the rights to the images he captured.
WHAT REALLY MATTERS TO PHOTOGRAPHERS
I believe there are two major points in this lawsuit that deserve photographers’ attention.
The first, which I have seen mentioned in some places but without context, is that Rentmeester registered the photo with the US Copyright Office just last month.
This is important due to the benefits of having your copyrights registered.
Other than the fact that works of a US origin have to be registered before an infringement suit can be filed, copyright registration within a specific time frame allows to file for statutory damages and attorney’s fee.
This is a BIG thing as without it the copyright owner can only file for actual damages and profits attributable to the copyright violation (which he has to prove), as opposed to generous statutory damages. Additionally, the fact that the court can order the defendant to pay the legal fees makes it much more likely to find a lawyer who will work on a contingency fee basis.
The late registration with the Copyright Office raises the question why the photographer waited so long, but it also leads us to the second point.
The specific time frame within which you can file for statutory damages and attorney’s fee is “within three months after publication of the work or prior to an infringement of the work”, but NBC Sports explains:
“Federal copyright law allows people to bring copyright claims within three years of an infringing act. But in May 2014, the U.S. Supreme Court in a similar copyright case ruled that delay in filing a copyright claim isn’t a bar to seeking damages as long as the copyright infringement continues.
That case, Petrella v. MGM, concerns the screenplay to the 1980 movie “Raging Bull,” co-written and sold by Frank Petrella, whose daughter sued MGM in 2009 seeking royalties from continuing commercial use of the film. Petrella’s claim fell within the three years, the court ruled, because the studio continued to release the film on DVD and other formats for years and every new release essentially reset the clock for copyright purposes.”
It is possible that upon learning of this case, or one following the Supreme Court’s ruling in this case, Rentmeester realized that he could still have his day in court and fight for what he believe is rightfully his.
Fulfilling his rights to the fullest, Rentmeester isn’t after “actual damages and profits”. According to NBC the photographer is “seeking unspecified monetary damages, profits generated from the image, and an injunction preventing further copyright infringement”.
Nobody is promising you will get the maximum statutory damages of $150,000 (if you can prove the infringement was committed willfully), but keep this info in mind next to you are offered peanuts in compensation for a copyright violation.
If you’re still more interested in the brands rather than the legal aspect, or if you’re just not a Nike fan, you will find it amusing to hear the in the shoot which inspired the famous Air Jordan logo, Jordan was actually wearing a pair of Converse shoes…