Rentmeester v. Nike, Inc.
883 F. 3d 1111 (2018)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Copyright protection for a photograph extends only to its original expression—the photographer's selection and arrangement of elements like pose, lighting, and background—not to the underlying idea or concept itself. A second work that copies the general idea or concept of a photograph but is not substantially similar in its expressive elements does not constitute infringement.
Facts:
- In 1984, photographer Jacobus Rentmeester created a highly original photograph of Michael Jordan for Life magazine.
- Rentmeester staged the shot on a grassy knoll, brought in a basketball hoop, and specifically directed Jordan to assume a pose inspired by ballet's 'grand jeté'.
- The resulting photograph depicted Jordan leaping toward the hoop, silhouetted against a cloudless blue sky, and was captured from a low camera angle.
- Shortly thereafter, Nike paid Rentmeester $150 for a limited license to use color transparencies of his photo for 'slide presentation only'.
- In late 1984 or early 1985, Nike commissioned its own photographer to produce a new photograph of Jordan.
- The Nike photo also showed Jordan in a ballet-inspired leaping pose, silhouetted against the sky from a low angle, but it featured the Chicago skyline as the background, different limb positioning for Jordan, and different lighting.
- In 1985, to avoid litigation over the initial use of the transparencies, Nike paid Rentmeester $15,000 for a two-year right to use its own photograph on posters and billboards.
- In 1987, Nike created the 'Jumpman' logo, which is a solid black silhouette based on the figure of Jordan in the Nike photograph.
Procedural Posture:
- Jacobus Rentmeester filed a copyright infringement action against Nike, Inc. in the U.S. District Court for the District of Oregon.
- Nike filed a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).
- The district court granted Nike's motion and dismissed Rentmeester's complaint with prejudice.
- Rentmeester, as Plaintiff-Appellant, appealed the district court's dismissal to the U.S. Court of Appeals for the Ninth Circuit.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a photograph that copies the general idea and concept of an earlier photograph, but differs in the selection and arrangement of expressive elements such as pose details, background, and lighting, constitute copyright infringement?
Opinions:
Majority - Judge Watford
No. A photograph that copies the general idea but differs in the selection and arrangement of expressive elements does not constitute copyright infringement. While Rentmeester's photo is entitled to broad copyright protection due to its high degree of originality, copyright does not protect the idea of Michael Jordan in a ballet-inspired leap. It only protects Rentmeester's specific expression of that idea. The court found that the Nike photograph was not substantially similar to Rentmeester's under the extrinsic test because of significant differences in key expressive elements. These differences include Jordan's specific pose (limb positioning), the background (grassy knoll vs. Chicago skyline), the lighting, and the overall composition and placement of the subject and hoop within the frame. Since the Nike photo is not infringing, the Jumpman logo, which is a derivative silhouette of the Nike photo, is also not infringing.
Dissenting in part and concurring in part - Judge Owens
Yes, potentially, for the Nike photo; No, for the Jumpman logo. The question of whether the Nike photo is substantially similar to Rentmeester's photo is an inherently factual inquiry that should be resolved by a jury, not by a court on a motion to dismiss. A reasonable jury could find the works substantially similar given the shared unique pose, angle, and outdoor setting. However, the Jumpman logo does not infringe. The logo is a silhouette of a pose, and a pose itself is an unprotectable idea entitled to only 'thin' copyright protection. Since the Jumpman logo is not 'virtually identical' to the figure in Rentmeester's photo, it does not infringe on any thin protection the pose might have.
Analysis:
This decision reinforces the fundamental copyright principle of the idea/expression dichotomy as applied to photography. It clarifies that while a photograph's highly original 'selection and arrangement' of elements receives broad protection, another artist may still use the core concept or idea of that photograph to create a new, non-infringing work. The ruling sets a high bar for infringement claims based on conceptual similarity, requiring plaintiffs to demonstrate that the defendant copied specific, protected expressive details, not just the overall theme or a unique idea. This protects creative freedom by allowing artists to build upon the ideas of others, so long as the new expression is sufficiently distinct.
