Back in 2015, Jacobus Rentmeester filed a copyright infringement claim against Nike, claiming that Nike had stolen the photograph he had taken of up-and-coming basketball star Michael Jordan. Nike had paid Rentmeester to use the photo for two years, but Rentmeester argued that Nike had later created a substantially similar photograph to use for their own purposes.

This photograph was then silhouetted, becoming the Nike logo, also known as the popular “Jumpman” logo used on Nike sneakers and merchandise since 1987.

In June, 2015, the Federal Court in Oregon granted Nike’s motion to dismiss the case. The court compared Rentmeester’s photo and Nike’s photo side-by-side and didn’t find any substantial similarities between the two photos. It noted the background, the scale and placement of Jordan in the photographs as some key differences. For similar reasons, the judge held that the “Jumpman” logo is nothing more than an expression of a pose and these two poses are not similar. With that holding, Nike’s motion to dismiss the case was granted.

This week, the Appellate Court responded to Rentmeester’s appeal of the Federal Court’s 2015 decision to dismiss the case.

In order to prove that there was sufficient copyright infringement by Nike, Rentmeester had to show that there was evidence that Nike had access to his photo and that the two works in question share substantial similarities probative of copying.

First, the court determined that Rentmeester had a ownership of a valid copyright. This was determined by the fact that the photo was an original work of authorship and that the photo was registered with the Copyright Office in 2014. Secondly, the court found that Rentmeester had enough evidence to allege the “copying” component of the second element of a copyright claim. Nike had access to Rentmeester’s photo and therefore had a reasonable opportunity to view it.

The Ninth Circuit’s decision came down to whether Nike copied enough of the protected expression from Rentmeester’s photo to establish unlawful appropriation. While other works of copyright (such as films and music) have various elements that are protected and unprotected by copyright, the court noted that photographs could not be broken down in the same way. The decision stated:

With respect to a photograph’s subject matter, no photographer can claim a monopoly on the right to photograph a particular subject just because he was the first to capture it on film. A subsequent photographer is free to take her own photo of the same subject, again so long as the resulting image is not substantially similar to the earlier photograph. . . .

What is protected by copyright is the photographer’s selection and arrangement of the photo’s otherwise unprotected elements

While the court found that Rentmeester’s photo was distinctive and original because the photographer had made several artistic choices regarding various aspects of the photo, including the setting and Jordan’s pose, Rentmeester’s photograph and Nike’s photograph were not found to be substantially similar.

While there were various creative choices made by Rentmeester in the photo’s composition, there were several different choices made by Nike in the composition and creation of its photo. The court noted that the position and composition of each photo was different, Jordan’s pose created a different visual impact in each photo, and the setting of each photo was different. Finally, it stated that Rentmeester’s claim of ownership was much too broad to be considered protectable. With that in mind, the court affirmed that Nike’s “Jumpman” logo was also not an infringement, as it was a silhouette taken from Nike’s non-infringing photo.

Interestingly, one judge did not entirely agree with the decision. Judge Owens argued that a jury should have been the one to determine whether the photos were or were not substantially similar, as opposed to allowing the court to take the question into its own hands. While he agreed that the Nike “Jumpman” logo was not infringing, as it was only an outline of a pose, he stated in his dissent that he could not confidently say that a reasonable jury would absolutely find in favor of Nike.

Just as Michael said in the blog’s 2015 article, this could (still) be a costly loss for Rentmeester. Nike will likely be able to request reasonable costs, and it’s no surprise that attorneys’ fees are bound to add up over years of litigation like this.

Author, Caroline Womack, is a 2L at Quinnipiac University School of Law and primarily studies intellectual property law, focusing on video game and internet law.