Photographer Jacobus Rentmeester has failed in his appeal against the 2015 decision of District Judge Michael Mosman in his case against Nike.
The 2015 case centered around a 1984 photograph taken by Rentmeester of basketball superstar Michael Jordan, leaping towards a basketball hoop as though he is about the dunk the ball. The image was featured on the 1984 issued of LIFE magazine. Rentmeester had previously allowed Nike to use the image for an advertising campaign but subsequently sued Nike for copyright infringement after claiming their use extended beyond what was agreed between the parties.
Rentmeester brought proceedings in 2015 in the District Court of Oregon. The Judge, however, ruled in favor of Nike's motion to dismiss. We have previously reported on the original case: if you wish to read background information, you can find it here.
On appeal, it was stated that to claim infringement Rentmeester must allege that he owns a valid copyright and that Nike has copied protected aspects of the photo's expression. The Court also used an extrinsic test to assess the objective similarities between the two works.
In applying the extrinsic test, the Court filtered out the non-protectable elements of the work and considered the elements of the photograph that could be afforded protection. In their analysis of Rentmeester's photograph, the Court determined that Rentmeester would be entitled to copyright protection for the pose Jordan takes in the photograph as a result of the angle, timing and shutter speed of the camera but not for any of the individual elements.
On assessing the substantial similarities of the two photos, the Court looked at the selection and arrangement of the elements of the photos and considered whether an ordinary observer would consider them similar enough or whether they would be overlooked.
The Court ruled that the subject-matter and concept of the two photos varied, particularly the positioning of the basketball hoops and the grass hill that was detailed in Rentmeester's photo. The Court of Appeal ultimately held that the two photos were not substantially similar having taken into account the concept, subject matter and arrangement of elements.
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