Ninth Circuit

Rentmeester v. Nike, Inc., No. 15-35509 (9th Cir. 2018)

Court Description: Copyright. The panel affirmed the district court’s dismissal of a copyright infringement action brought by photographer Jacobus Rentmeester against Nike, Inc. Rentmeester 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 “Jumpman” logo. The 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. Rentmeester 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 RENTMEESTER V. NIKE 3 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 Rentmeester’s photo. Concurring 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 stage.