Rentmeester v. Nike, Inc.: A Tale of Two Photographs

It was the best of poses, it was the… well, it’s a pretty iconic pose. In modern media, you’d be hard pressed to find someone who didn’t recognize Nike’s “Jumpman” logo. Even if you wouldn’t know to call it the Jumpman, you’ve seen it if you’ve ever seen a pair of Air Jordans, or any of the (excessive) merchandising that’s been done connected to the Air Jordan image/brand.

The logo was made using a silhouette produced from an actual photo of Michael Jordan, commissioned by Nike sometime before 1988, when the logo was first used by the company. It’s hard to assign a dollar amount to the value of that image, but certainly, culturally, it’s been accruing cache internationally for the last three decades, and has become synonymous with the Air Jordan brand.

Enter Jacobus Rentmeester. The year is 2015, and the photographer has just filed a copyright claim against Nike, Inc. claiming that the photograph they commissioned, which the Jumpman logo was created from, constituted a plagiarization of his original photo. Did you follow that? According to Rentmeester’s line of thinking, his photo—let’s call it Photo A (of Michael Jordan, originally published in TIME magazine in 1984)—provided the concept and raw material for Nike’s commissioned photo—Photo B—which begat the Jumpman logo.

It’s not an entirely unreasonable claim. Many things between the two photographs are (at least) similar. Both photos are of Michael Jordan; compositionally, both feature a figure to the left of a basketball hoop, jumping towards the hoop, ball in hand. In both photos, the player’s legs are splayed impossibly wide, and the camera is positioned slightly lower than eye level, so that the viewers looks up towards Jordan. This gives Jordan a sense of being larger-than-life, daunting, even superhuman. The lighting in both photos is also similar: in both photos, Jordan is backlit, which creates a high-contrast visual effect, which in turn contributes to a feeling of monumental drama.

There are also some differences between the photos: Nike’s commissioned photo has a closer crop than Rentmeester’s, and the subject (Jordan) is smack in the middle of the photo. Rentmeester’s photo was originally part of a magazine spread, which by good sense dictated that Jordan had to be one side of the photo. Jordan’s physical position is also subtly different. In Rentmeester’s photo, Jordan’s right hand is raised, while in Nike’s photo, his right hand is stretched out behind him. In both photos, Jordan’s right hand is stretched wide open, but this is much easier to see in the Nike photograph.

The two photos also tell a slightly different story: in Rentmeester’s photograph, the focus is squarely on Jordan’s athleticism. The horizon is a grassy hill in the foreground, and  he is wearing plain athletic wear. Altogether, the main thrust feels like a passion for the sport—the only things that exist in the world of this photograph are a basketball player, a basketball, and a hoop. In Nike’s commissioned photo, on the other hand, a silhouetted city skyline is in the background. Jordan occupies the center of the photograph, decked-out in flashy, colour-coordinated sportswear (and, conspicuously, Air Jordans). The story here is a superstar basketball player in an urban setting.

The case concluded in February 2018 with a ruling against Rentmeester’s claim. The court panel and jury analysis is a little hard to parse without a firm grasp of legal jargon, but essentially the salient idea was that the “expression of the pose” did reasonably belong to Rentmeester, but that the photos were ” as a matter of law not substantially similar” (Stanford University Libraries, 2018).

 

It’s difficult to respond to the ruling without having a firm understanding of the information or decision-making process, but I think this case presents a very interesting question. We’ve accepted that a photograph is the property of the photographer, but what about the contents of that photograph? It reminds me of the basic copyright principle that a person doesn’t own an idea, but the unique expression of that idea. But how does that apply to a photograph? If the idea is the subject, the pose, and the basic composition of the photograph, couldn’t the unique expression be the combination of all of these things? In this case, the law would say no. As for my opinion, the jury is still in deliberation.

Works Consulted

Stanford University Libraries. “Rentmeester v. Nike, Inc.” Copyright and Fair Use. https://fairuse.stanford.edu/case/rentmeester-v-nike-inc/. Accessed 1 March 2019.

Esquenet, Margaret A. “United States: Photographer Sues Nike for Copyright Infringement of Iconic Jordan Logo.” Mondaq. http://www.mondaq.com/unitedstates/x/377138/Copyright/Photographer+Sues+Nike+For+Copyright+Infringement+Of+Iconic+Jordan+Logo. Accessed 1 March 2019.

“Jumpman (logo).” Wikipedia. https://en.wikipedia.org/wiki/Jumpman_(logo). Accessed 1 March 2019.

 

 

3 Replies to “Rentmeester v. Nike, Inc.: A Tale of Two Photographs”

  1. This was a really engaging and well-written reflection! I especially appreciated your analysis between the two images. Towards the end, however, you say the jury is still out. I somewhat inferred through the analysis that you think the images are distinct enough that the photo was not entirely plagiarized, but I admit I do somewhat wish an official ruling had been reached in the reflection.

  2. Oh man, Steph, this was such a great post! I really enjoyed it. You give a super clear overview of the case, and you’re incredibly engaging throughout. I also really like that you tie-in the basic copyright principle of unique expression when talking about photography, and leave us with a bunch of questions. It’s totally fair that you didn’t take a stance; the legalese is really difficult to understand so it’s difficult to have an informed opinion! That being said, I wish you had just a little! But I also get that the word count is tight. Thanks for an entertaining and interesting read!

  3. This case is similar to one I have assigned for Copyright week in the past regarding a photo of Rod Stewart. It is certainly tricky to figure out when an instantiation of an idea is sufficiently close as to be considered the same. I am not sure how the Rod Stewart case played out, but it would be worthwhile to dig into a few cases to see what characteristics have been used to make the determination.

    I left you a few comments regarding form, in particular to the use of images and adequately copying and sourcing them in your text. Most of you haven’t been too diligent on this when including media, but it seems especially important when including parts of a legal document.

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