Jacobus Rentmeester v. Nike, Inc.
883 F.3d 1111
| 9th Cir. | 2018Background
- Rentmeester took an original 1984 photograph of Michael Jordan posed in a grand jeté–inspired leap on a grassy knoll; he licensed two transparencies to Nike for a limited slide use in 1984 for $150.
- Nike later commissioned its own photo of Jordan (similar conceptually) and used it in marketing; Nike paid Rentmeester $15,000 in 1985 for continued limited use of the Nike photo on posters/billboards for two years but allegedly used it beyond that period.
- In 1987 Nike created the solid black Jumpman silhouette derived from the Nike photo; the logo became a major trademark for Nike.
- Rentmeester registered his copyright in 2014 and sued in 2015 alleging direct, vicarious, contributory infringement and a DMCA claim, seeking damages only for acts within the three-year limitations window.
- The district court dismissed with prejudice under Rule 12(b)(6); the Ninth Circuit affirmed as to the Nike photo and Jumpman logo, holding no infringement as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Copyright ownership/validity | Rentmeester: owns a valid copyright in the 1984 photograph. | Nike: did not contest ownership/registration for purposes of appeal. | Court: Rentmeester plausibly alleged ownership and valid registration; element satisfied. |
| Copying / Access | Rentmeester: Nike had access because he provided transparencies to Nike pre-production. | Nike: does not dispute access but argues independent creation / lack of unlawful appropriation. | Court: Access established; a presumption of copying arises but only addresses copying, not substantial similarity. |
| Substantial similarity re: Nike photograph (unlawful appropriation) | Rentmeester: Nike photo copies protected selection & arrangement (pose, setting, angle) and thus is substantially similar. | Nike: its photographer made materially different expressive choices (pose details, background, lighting, framing); only general ideas copied, which are unprotectable. | Court: As a matter of law, after filtering unprotectable elements the expressive details differ materially; no unlawful appropriation; dismissal affirmed. |
| Jumpman logo infringement | Rentmeester: Jumpman silhouette derives from Nike photo and thus infringes his photo. | Nike: silhouette isolates and stylizes an element of the Nike photo that differs materially from Rentmeester’s protected expression. | Court: Jumpman is even less similar than the Nike photo; no infringement as a matter of law. |
Key Cases Cited
- Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991) (originality and idea–expression distinction)
- Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) (photograph as copyrightable authorship)
- Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp., 562 F.2d 1157 (9th Cir. 1977) (copying vs unlawful appropriation distinction)
- Arnstein v. Porter, 154 F.2d 464 (2d Cir. 1946) (proof of copying principles)
- Mattel, Inc. v. MGA Entertainment, Inc., 616 F.3d 904 (9th Cir. 2010) (thin vs broad protection; substantial similarity standard)
- Three Boys Music Corp. v. Bolton, 212 F.3d 477 (9th Cir. 2000) (inverse ratio rule on access and similarity)
- Baxter v. MCA, Inc., 812 F.2d 421 (9th Cir. 1987) (access + probative similarity create presumption of copying)
- Ets-Hokin v. Skyy Spirits, Inc., 323 F.3d 763 (9th Cir. 2003) (thin protection for constrained commercial photography)
- Cavalier v. Random House, Inc., 297 F.3d 815 (9th Cir. 2002) (extrinsic/intrinsic tests for substantial similarity)
- Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992) (need not be exact duplicate to infringe; focus on protected expression)