Brand Image and Visual Image Protection: Trademark law protects Nike’s famous Jumpman logo of Michael Jordan (above right), and copyright law protects the rights of the photographer who shot the photograph (above left) upon which the logo was based. So which wins in a race to the rim? In the case of Rentmeester v. Nike Inc. (DC Ore), the logo ended up on top, while the photo infringement claim was rejected.
Jacobus Rentmeester shot the Jordan photo for Life magazine in 1984. Nike licensed the image for two years, but then in 1987 it created its own image of Jumpman. Rentmeester complained in 1987, but did not sue. With so much time having gone by, it seemed that the threat of a copyright infringement suit came and went. But them the Supreme Court in Petrella v. MGM, 572 U.S. __ (2014) ruled last year that it was never too late to sue for copyright; only damages are limited to the last three years.
However, on June 17, 2015 the case was tossed on a motion to dismiss, the court finding that the image, boiled down, consisted only of a human pose, and only if the two images are “virtual identical” could there be copyright infringement. For example, there’s no lighting detail in what ultimately is only a silhouette image; thus, the range of expression to be copied in the pose “idea” is very limited. The court had no trouble finding, in a comparison of the two images, that they were not virtually identical.
By setting up a screen that filtered out most of the expressive elements of the photograph and daring to do what it did in using only the remaining self-evident similar elements, Nike adhered its own advice: Just Do It.