Jumpman Case Is No Slam Dunk

In 1984, Life Magazine published a photograph taken by Jacobus Rentmeester of Michael Jordan dunking a basketball while wearing USA Olympic warm-up gear. Shortly thereafter, Nike’s Peter Moore, the designer of the first Air Jordan sneaker, paid Rentmeester $150 for temporary use of Rentmeester’s image. [1] Nike then created an image of Jordan dunking a basketball while wearing a Chicago Bulls uniform in front of the Chicago skyline. Nike’s photograph became the silhouetted image now recognized as Nike’s Jumpman logo.

Images can be found at: http://www.diyphotography.net/wordpress/wp-content/uploads/sites/78/2015/01/Comparison2.jpg

In March of 1985, Rentmeester granted Nike a limited license of the Jumpman image for two years, in exchange for $15,000. The Air Jordan I was released in 1985 and featured the Jumpman logo on the sneaker’s price tag. In 1987, the Jumpman logo appeared for the first time on the tongue of the Air Jordan III sneaker, designed by Tinker Hatfield. [2] Nike trademarked various versions of the Jumpman logo in 1989, 1992, and 1998. The rest is history. Nike sold $100 million worth of Air Jordan I sneakers in 1985 and the Jordan brand generated $3.2 billion in retail sales in 2014. [3]

Last month, Rentmeester registered his photograph with the U.S. Copyright Office for the first time. Now, 28 years after his two-year contract with Nike expired, Rentmeester is suing Nike in federal court in Oregon for copyright infringement. Although seemingly overdue, Rentmeester’s lawsuit will have standing in federal court. In May 2014, the U.S. Supreme Court held in Petrella v. MGM that delay in filing a copyright claim isn’t a bar to seeking damages so long as the copyright infringement is ongoing. [4] Rentmeester is seeking profits associated with the Jordan brand, as well as a halt to current sales and plans for the brand’s future. [5]

It seems that Rentmeester made a deal with the devil. He poorly negotiated the terms of his licensing agreement and failed to enforce or renegotiate its terms after its expiration. Rentmeester is now the biblical David up against a multibillion-dollar Goliath corporation with an army of lawyers.

In order to prove copyright infringement, the plaintiff needs a valid copyright and must prove that the defendant has actually copied the plaintiff’s work and a substantial similarity exists between the defendant’s work and the protectable elements of the plaintiff’s work. [6] The Jumpman logo differs in some respects from the original photograph: it depicts Jordan’s silhouette in a more triangular shape than it appears in Rentmeester’s photograph and Jordan’s right arm and leg are straightened. If Nike is able to prove that its logo is altered enough from the original photo so that a substantial similarity does not exist, then Rentmeester’s claim will fail.

How likely is it that Rentmeester will prevail in a lawsuit against Nike? Cynically speaking, very unlikely. To say Nike has deep pockets and a sizable stake in the outcome of this lawsuit is an understatement. However, the legal and art communities ought to rally behind Rentmeester’s claim. According to philosopher Georg Wilhelm Friedrich Hegel, an object that has been granted intellectual property rights, such as Rentmeester’s photograph of Jordan, is an ongoing expression of its creator. Even if society believes that a work is a freely abandoned cultural object, the creator may still identify with it enough to oppose certain uses for it. [7] Morally speaking, Rentmester has a right to defend the integrity of his work against alterations that would damage his reputation or destroy his intended message. His art is a form of self-expression, and this expression is essential to his identity as an artist. Unfortunately, there are no provisions in American Copyright Law that give an author “moral rights” to his work. [8]

It is only when our legal system chooses to recognize and defend the self-actualizing connection between a creator and his expression will our system properly and ethically protect artists’ copyrights.

 

Elisa Hevia is a current first year student at Harvard Law School (Class of 2017).

 

Footnotes:

[1] Darren Rovell, Nike Sued Over Michael Jordan Logo, ESPN (Jan. 23, 2015), http://espn.go.com/nba/story/_/id/12218091/photographer-sues-nike-michael-jordan-photo-copyright.

[2] http://www.footlocker.com/_-_/keyword-history+of+air+jordan.

[3] Darren Rovell, Nike Sued Over Michael Jordan Logo, ESPN (Jan. 23, 2015), http://espn.go.com/nba/story/_/id/12218091/photographer-sues-nike-michael-jordan-photo-copyright.

[4] Petrella v. MGM, 134 U.S. 1962 (2014).

[5] Darren Rovell, Nike Sued Over Michael Jordan Logo, ESPN (Jan. 23, 2015), http://espn.go.com/nba/story/_/id/12218091/photographer-sues-nike-michael-jordan-photo-copyright.

[6] Mannion v. Coors Brewing Co., 377 F.Supp.2d 444, 449 (S.D.N.Y. 2005).

[7] Justin Hughes, The Philosophy of Intellectual Property, 77 Geo. L.J. 287, 348 (1988).

[8] Id. at 351.