The Jumpman Copyright Suit
In January, a man named Jacobus Rentmeester filed a lawsuit against Nike for copyright infringement. Rentmeester claims that Nike’s famous Jumpman logo from the Jordan Brand was based on a photograph he took of Michael Jordan in 1984 for Life Magazine. Rentmeester claims that he was a freelancer who owns copyright in the original photograph, that he merely granted 2 separate temporary licenses to Nike to use the photo in 1984 & 1985, and that after those licenses expired in 1987, Nike has been infringing his copyright for 28 years.
Starting with the Air Jordan III’s, when famous Nike shoe designer Tinker Hatfield first put the Jumpman logo on the shoe, Nike has released 26 more versions of Air Jordans, plus numerous other limited edition Air Jordan shoes, basketball apparel, and accessories, all with the Jumpman logo on it. Nike’s Jordan brand has been iconic in sports and sports merchandise – to the tune of $3.2 billion in retail sales in 2014 alone – and Rentmeester claims that the brand rose to prominence through copyright infringement, which is why he is seeking a share of the profits made on all items with the Jumpman logo on it.
That’s a lot of Jordan’s, man.
The crux of Rentmeester’s lawsuit is his photo (header), which features MJ leaping through the air in a ballet pose that Rentmeester claims he choreographed:
“Mr. Rentmeester created the pose, inspired by a ballet technique known as a ‘grand jete,’ a long horizontal jump during which a dancer performs splits in mid-air,” the lawsuit says. “The pose, while conceived to make it appear that Mr. Jordan was in the process of a dunk, was not reflective of Mr. Jordan’s natural jump or dunking style.”
The importance of the creation of the pose, of course, is that it reflects some originality, which is the sine qua non of copyright. While the photograph satisfies the “fixed in a tangible medium of expression,” portion, the pose would also need to be an “original work of authorship” to receive copyright protection. Since Jordan admitted that the original photo was posed (and that he wasn’t even dunking when he did the pose), Rentmeester’s claim that he created the pose for Jordan carrying the basketball is likely enough to satisfy the originality requirement, as it only requires a minimal degree of creativity to merit protection.
The Jumpman logo created by Nike is a derivative work – a work based upon one or more preexisting works in any form in which the original work is recast, transformed or adapted. While Nike does own trademarks in the Jumpman logo (right), because the logo is based on the silhouette of the image in the photo, Rentmeester likely can show that the logo is a derivative work. Copyright owners have the exclusive right to prepare derivative works based upon the copyrighted work, thus Rentmeester’s claim against Nike is based on this allegedly infringed right.
The big question is the timing. According to Rentmeester, he granted Nike a two-year license to use his copyrighted photograph (and any derivatives thereof – i.e. the Jumpman logo) in 1985. So, once the licensed expired in 1987 and Nike continued using the logo – a derivative work of Rentmeester’s photo – Rentmeester had a claim for copyright infringement. Considering the Air Jordan III’s came out in 1988 (and assuming that Rentmeester’s story about the expiring license holds water), Nike may have infringed the copyright in the photo.
But wait! If you’re thinking that: a) 1987 was a pretty long time ago, and b) lawsuits usually have some sort of time limit to bring a claim, so then c) this lawsuit will likely be barred by a statute of limitations, you are right! Federal copyright claims have a 3-year limit to bring claims after the infringing activity occurs. The problem for Nike, however, is two-fold. First, their “infringing activities” didn’t cease in 1988, as the Jumpman logo has been in full swing (evidenced by the massive sales associated with the line in 2014). Second, the Supreme Court ruled last year, in Petrella v. MGM, that the doctrine of laches (a defense that basically says the plaintiff is barred from bringing suit because the plaintiff sat on her right to sue for too long) does not bar suits stemming from infringing activity within the last 3 years. This essentially means that Rentmeester may be entitled to equitable damages relating to the use of his copyright from 2012-2015.
Far worse, potentially, for Nike is that Petrella ruled that the copyright owner (there, the heir of the screenwriter of Raging Bull) could stop the release of any further derivative works (i.e. any more releases of the film). Should Rentmeester win this suit and be able to halt production of any and all products bearing the Jumpman logo, that could mean huge losses for Nike. Even if he doesn’t win, if his case gets far enough, Nike will want to settle – either way, this will likely mean a BIG TIME payday for Rentmeester should Nike choose to pay him to continue using the logo.
Header photo by: @kevinv033 under Creative Commons License.