Could a copyright case about an iconic photograph of Michael Jordan prove irresistible to a basketball-loving Supreme Court? Especially if it’s a chance to dunk on the Ninth Circuit? We might have an answer Monday morning.
The justices have relisted for Friday’s conference Rentmeester v. Nike, a case about a 35-year-old photograph of Jordan that photography groups are framing as a referendum on their art.
The Ninth Circuit’s 2-1 decision in the case “treats photography as a second-class art and denigrates photographers’ artistic judgments,” attorneys for photojournalist Jacobus Rentmeester, led by Deepak Gupta of Gupta Wessler, argue in their cert petition. They have amicus support from the American Society of Media Photographers, among others.
A Kirkland & Ellis team led by partner Dale Cendali is trying to D up for Nike. They say Nike’s version of the photo—on which the company based its famous “jumpman” logo—is not substantially similar to Rentmeester’s shot. “Petitioner effectively requests special treatment for photographs, beyond what this court has afforded other creative works—whereby all questions of infringement would have to go to a jury,” Nike argues.
➤ ➤ Would you like to receive Skilled in the Art as an email. Sign up here and receive the next issue straight to your inbox.
Rentmeester captured the original shot for a Life magazine spread on American athletes who would be featured in the 1984 Olympics. He photographed Jordan on a grassy knoll on the University of North Carolina campus, arranging for him to leap in a style inspired by ballet’s grand jeté.
Nike partly recreated the photo the following year, having Jordan strike a nearly identical pose, but against different lighting and set against the Chicago skyline. Rentmeester alleges that when he threatened to sue, Nike paid him $15,000 to use the photo in North America, for just two years. Instead, Nike used the photo worldwide for much longer, eventually morphing it into the jumpman logo used on billions of dollars worth of merchandise, Rentmeester alleges. He originally claimed that both the photograph and logo infringed, but has dropped his claims over the logo at the Supreme Court.
Ninth Circuit Judge Paul Watford held that Rentmeester’s photograph was entitled to broad copyright protection. But he said there were enough differences in the selection and arrangement of elements such as lighting, background and angle toward the basket that the two photos are not substantially similar as a matter of law. Rentmeester “cannot prohibit other photographers from taking their own photos of Jordan in a leaping, grand jeté-inspired pose,” Watford wrote.
Judge John Owens dissented, saying the case shouldn’t be decided on the pleadings. “Whether the Nike photo is substantially similar is not an uncontested breakaway layup,” Owens wrote, “and therefore dismissal of that copyright infringement claim is premature.”
Owens’ use of metaphor wasn’t surprising. Before going to law school, he was a marketing assistant for the Golden State Warriors and penned some articles for basketball magazines.
Several Supreme Court justices are likewise known to enjoy a game of hoops, particularly on the Highest Court in the Land. Will Rentmeester’s case have enough game for them? We should find out Monday.