and Submitted July 11, 2017 Portland, Oregon
from the United States District Court for the District of
Oregon Michael W. Mosman, Chief District Judge, Presiding
D.C. No. 3:15-cv-00113-MO
M. Harvey (argued), Katherine C. Lubin, and Eric B. Fastiff,
Lieff Cabraser Heimann & Bernstein LLP, San Francisco,
California; Cody Hoesly, Larkins Vacura LLP, Portland,
Oregon; for Plaintiff-Appellant.
Cendali (argued), Johanna Schmitt, and P. Daniel Bond,
Kirkland & Ellis LLP, New York, New York; Jon Stride,
Tonkon Torp LLP, Portland, Oregon; for Defendant-Appellee.
Before: Marsha S. Berzon, Paul J. Watford, and John B. Owens,
panel affirmed the district court's dismissal of a
copyright infringement action brought by photographer Jacobus
Rentmeester against Nike, Inc.
alleged that Nike infringed his copyright in a photograph of
Michael Jordan when it commissioned its own photograph of
Jordan and then used that photo to create its
panel held that Rentmeester plausibly alleged the first
element of his copyright claim-that he owned a valid
copyright in his photo. He also plausibly alleged the
"copying" component of the second element because
Nike's access to Rentmeester's photo, combined with
the obvious conceptual similarities between the two photos,
was sufficient to create a presumption that the Nike photo
was the product of copying rather than independent creation.
did not, however, plausibly allege that Nike copied enough of
the protected expression from his photo to establish unlawful
appropriation. The panel held that Rentmeester could not
copyright the pose in the photograph, and he was entitled to
protection only for the way the pose was expressed, including
the camera angle, timing, and shutter speed he chose. The
panel explained that a photographer's copyright is
limited to the particular selection and arrangement of the
elements expressed in the copyrighted image. The panel held
that Rentmeester's photo was entitled to broad rather
than thin protection because the range of creative choices
open to him in producing the photo was exceptionally broad.
Nonetheless, Rentmeester did not plausibly allege that his
photo and the Nike photo were substantially similar under the
extrinsic test because there were differences in selection
and arrangement of elements, as reflected in the photos'
objective details. The panel concluded that, therefore, the
Jumpman logo also was not substantially similar to
in part and dissenting in part, Judge Owens agreed with most
of the majority's analysis, and with its holding that
Rentmeester could not prevail on his Jumpman logo copyright
infringement claim. Judge Owens disagreed with the
majority's conclusion as to the Nike photo on the basis
that questions of substantial similarity are inherently
factual and should not have been resolved at the dismissal
WATFORD, Circuit Judge
a copyright infringement action brought by the renowned
photographer Jacobus Rentmeester against Nike, Inc. The case
involves a famous photograph Rentmeester took in 1984 of
Michael Jordan, who at the time was a student at the
University of North Carolina. The photo originally appeared
in Life magazine as part of a photo essay featuring
American athletes who would soon be competing in the 1984
Summer Olympic Games. We are asked to decide whether Nike
infringed Rentmeester's copyright when it commissioned
its own photograph of Jordan and then used that photo to
create one of its most iconic trademarks.
allegations in Rentmeester's complaint, which we accept
as true at this stage of the proceedings, establish the
following. Rentmeester's photograph of Jordan, reproduced
in the Appendix, is highly original. It depicts Jordan
leaping toward a basketball hoop with a basketball raised
above his head in his left hand, as though he is attempting
to dunk the ball. The setting for the photo is not a
basketball court, as one would expect in a shot of this sort.
Instead, Rentmeester chose to take the photo on an isolated
grassy knoll on the University of North Carolina campus. He
brought in a basketball hoop and backboard mounted on a tall
pole, which he planted in the ground to position the hoop
exactly where he wanted. Whether due to the height of the
pole or its placement within the image, the basketball hoop
appears to tower above Jordan, beyond his reach.
Rentmeester instructed Jordan on the precise pose he wanted
Jordan to assume. It was an unusual pose for a basketball
player to adopt, one inspired by ballet's grand
jeté, in which a dancer leaps with legs extended,
one foot forward and the other back. Rentmeester positioned
the camera below Jordan and snapped the photo at the peak of
his jump so that the viewer looks up at Jordan's soaring
figure silhouetted against a cloudless blue sky. Rentmeester
used powerful strobe lights and a fast shutter speed to
capture a sharp image of Jordan contrasted against the sky,
even though the sun is shining directly into the camera lens
from the lower right-hand corner of the shot.
long after Rentmeester's photograph appeared in
Life magazine, Nike contacted him and asked to
borrow color transparencies of the photo. Rentmeester
provided Nike with two color transparencies for $150 under a
limited license authorizing Nike to use the transparencies
"for slide presentation only." It is unclear from
the complaint what kind of slide presentation Nike may have
been preparing, but the company was then beginning its
lucrative partnership with Jordan by promoting the Air Jordan
brand of athletic shoes.
1984 or early 1985, Nike hired a photographer to produce its
own photograph of Jordan, one obviously inspired by
Rentmeester's. In the Nike photo, Jordan is again shown
leaping toward a basketball hoop with a basketball held in
his left hand above his head, as though he is about to dunk
the ball. See Appendix. The photo was taken outdoors
and from a similar angle as in Rentmeester's photo, so
that the viewer looks up at Jordan's figure silhouetted
against the sky. In the Nike photo, though, it is the city of
Chicago's skyline that appears in the background, a nod
to the fact that by then Jordan was playing professionally
for the Chicago Bulls. Jordan wears apparel reflecting the
colors of his new team, and he is of course wearing a pair of
Nike shoes. Nike used this photo on posters and billboards as
part of its marketing campaign for the new Air Jordan brand.
Rentmeester saw the Nike photo, he threatened to sue Nike for
breach of the limited license governing use of his color
transparencies. To head off litigation, Nike entered into a
new agreement with Rentmeester in March 1985, under which the
company agreed to pay $15, 000 for the right to continue
using the Nike photo on posters and billboards in North
America for a period of two years. Rentmeester alleges that
Nike continued to use the photo well beyond that period.
1987, Nike created its iconic "Jumpman" logo, a
solid black silhouette that tracks the outline of
Jordan's figure as it appears in the Nike photo.
See Appendix. Over the past three decades, Nike has
used the Jumpman logo in connection with the sale and
marketing of billions of dollars of merchandise. It has
become one of Nike's most recognizable trademarks.
filed this action in January 2015. He alleges that both the
Nike photo and the Jumpman logo infringe the copyright in his
1984 photo of Jordan. His complaint asserts claims for
direct, vicarious, and contributory infringement, as well as
a claim for violation of the Digital Millennium Copyright
Act, 17 U.S.C. § 1202. Rentmeester seeks damages only
for acts of infringement occurring within the Copyright
Act's three-year limitations period (January 2012 to the
present). Doing so avoids the defense of laches that would
otherwise arise from his 30-year delay in bringing suit.
See Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S.Ct.
1962, 1970 (2014).
district court granted Nike's motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6). The court dismissed
Rentmeester's claims with prejudice after concluding that
neither the Nike photo nor the Jumpman logo infringe
Rentmeester's copyright as a matter of law. We review
that legal determination de novo.
state a claim for copyright infringement, Rentmeester must
plausibly allege two things: (1) that he owns a valid
copyright in his photograph of Jordan, and (2) that Nike
copied protected aspects of the photo's expression.
See Feist Publications, Inc. v. Rural Telephone Service