Supreme Court Denies Photographer’s Appeal in Copyright Suit Against Nike
On March 25, the Supreme Court denied certiorari on an appeal from a photographer who claims that Nike took key elements from his iconic photograph of Michael Jordan and used them to sell its Air Jordan line of shoes.[1] Jacobus Rentmeester, the photographer who took the portrait, was seeking to argue his case in front of the Supreme Court after the Ninth Circuit affirmed the dismissal of his action for copyright infringement with prejudice.[2]
Rentmeester’s photograph, first appearing in Life magazine in 1984, depicts an image of Jordan in midair dunking a basketball with his legs spread apart and his left hand holding the ball over his head.[3] Shortly after the photo appeared in Life, Nike hired a photographer to produce its own photograph of Jordan.[4] The photo was taken from a similar angle as Rentmeester’s and again showed Jordan leaping toward a basketball hoop with his legs spread apart and holding a basketball in his left hand over his head.[5] However, in Nike’s photo, the Chicago skyline appears in the background and Jordan is wearing Nike shoes to match his Chicago Bulls apparel.[6] In 1987, Nike began using Jordan’s silhouette in this photo to create its Jordan “Jumpman” logo, which it has used to sell shoes and other apparel for the past 32 years.[7] Since its inception, Jordan shoes have become massively popular and, in 2017, Nike reported $3.1 billion in wholesale revenue from its Jordan brand alone.[8]
At the district court level, Rentmeester had successfully established that he owned the valid copyright in his photo and that the Nike photo was the product of copying rather than independent creation.[9] The main issue on appeal was determining whether Nike copied enough of the photo’s protected expression to render their works “substantially similar” as to rise to the level of unlawful appropriation.[10] In copyright actions involving photographs, determining substantial similarity is difficult because objective elements relating to choices of subject matter, pose, lighting, and camera angle, when viewed in isolation, are not subject to copyright protection.[11] Therefore, the pose of a man flying through the air with his legs spread apart and a ball in his left hand over his head is not itself copyrightable. However, as Judge Watford pointed out in his opinion, the photographer’s selection and arrangement of the photo’s unprotected elements may be copyrightable.[12]
Copyright on the selection of unprotectable elements in a photograph is analogous to the idea that facts may not be protectable, but the selection, arrangement, and presentation of those facts in a compilation may be protectable.[13] Courts have generally followed the rule of thumb that “the greater the range of creative choices that may be made, the broader the level of protection that will be afforded to the image.”[14]
With that in mind, to determine whether two photos are substantially similar, courts must compare the similarities and differences of the elements used in each photograph. Thus, to establish unlawful appropriation, the selection and arrangement of the elements must be similar enough that “the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them.”[15] For example, while both pictures, in this case, depicted Jordan in the same leaping pose, the angles of his legs in each photo are slightly different, which led Judge Watford to the conclusion that Nike borrowed only the general idea or concept of the pose embodied in the image. This difference, along with others, such as the slight differences in the foreground material, background material, and the positioning of Jordan in relation to the hoop in each photo, led the Ninth Circuit to affirm that the photos lacked substantial similarity.
The decision in this case is not wholly novel, as courts have consistently held that a pose isolated from a picture, such as the “Air Jordan,” do not deserve broad copyright protection.[16] However, in almost all of these cases, the determination of substantial similarity was a question of fact that was left to the jury. The Ninth Circuit has specifically held that summary judgment is “not highly favored” on questions of substantial similarity in copyright cases.[17] While it seems that the Ninth Circuit in this case likely came to the right decision, it is possible that the case should have been remanded to the lower court to allow the question of substantial similarity to be determined by a jury.
Footnotes
