The nation’s highest court won’t be hearing a case involving Nike and a photo taken more than three decades ago.
Photojournalist Jacobus Rentmeester claimed Nike copied elements of a photo he took of basketball star Michael Jordan and used it to create the company’s iconic “Jumpman logo.” The logo was used as part of Nike’s highly successful Air Jordan campaign, which has since sold billions of dollars of sneakers.
The U.S. Supreme Court rejected the case on Monday without explanation, setting a precedent that allows brands to create ad campaigns based on parts of prior artwork, as long as the new campaign is slightly altered in some way.
Back in 1984, Rentmeester, then a student at University of North Carolina, staged a photo with Jordan holding a basketball and jumping in the air. The photo ran in Life magazine the same year for the Olympics.
Nike later asked Rentmeester permission to use the photo, but the photojournalist said he allowed the apparel and footwear company to use the photo “for slide presentation only, no layouts or any other duplication,” and said Nike paid him licensing permits for two years in North America only.
That’s why the photographer said he was surprised when Nike used a similar image for its Air Jordan campaign. Rentmeester sued Nike for copyright infringement, saying artists, including photographers, should be protected for their work.
According to U.S. copyright law, creative expression that is fixed in a tangible form, such as books, is protected by copyright, according to Jason Rosenberg, an intellectual property lawyer. But an idea is not eligible for copyright protection.
Both a district court and a Ninth Circuit rejected Rentmeester’s case, saying that copyright protection did not extend to the creative choices the photographer made when composing the image. That’s when the photographer went to the Supreme Court.
The case seemed like a longshot, but Rentmeester argued that “The Ninth Circuit’s opinion contradicts prior decisions of this Court…and raises questions of exceptional importance.”
Those questions include whether or not a photographer’s creative expression should be protected by copyright and if photography should receive the same copyright protection as other forms of art.
“The Ninth Circuit’s majority opinion also conflicts with longstanding Supreme Court precedent holding that a photographic portrait is ‘an original work of art’ entitled to copyright protection,” Rentmeester wrote in court documents, citing the 1884 Supreme Court case Burrow-Giles Lithographic Co. v. Sarony, which found that Congress had the right to extend copyright protection to photography.
“The same ‘intellectual invention’ that entitles a photograph to protection in the first place also provides protection for the creative elements within it,” court documents state.
He pointed out that Nike’s Jumpman logo also won numerous awards, including one in 2017 from Time magazine, ranking it one of the most influential images of all time.
But in Nike’s Feb. 6 response, the company said it hired a different photographer — Chuck Kuhn — to photograph Jordan for the Jumpman logo and that Kuhn’s photo was different. Most notably, the background and colors: Kuhn’s photo has red hues and a cityscape in the background. Rentmeester’s photo is composed of darker colors and a sunset background somewhere in a field.
“[Rentmeester] admits that the Jumpman logo is based on Mr. Jordan’s silhouette in the Nike photo [by Kuhn], not the Rentmeester photo,” the response from Nike stated.
“This case merely presents the routine application of the settled principle — enshrined in the Copyright Act itself — that ideas are not protectable, only expression is,” Nike response said. “Every court agrees on that bedrock principle…0every premise of the petition is false.”
The Supreme Court agreed. But the same day Nike was freed from the Jumpman lawsuit, the company was hit with new legal troubles.
The European Commission fined Nike 12.5 million euros, or more than $14 million, for violating European Union sanctions. The Commission found that between July 2004 and October 2017, Nike engaged in a number of illegal business practices, including banning traders from selling licensed soccer merchandise to other countries within the European Union and threatening to end contracts with traders who sold to other countries. The actions left consumers with fewer options and higher prices.
“Today’s decision makes sure that retailers and consumers can take full advantage of one of the main benefits of the single market: the ability to shop around Europe for a larger variety of products and for the best deals,” commissioner Margrethe Vestager said in a statement.
Nike could not be reached for further comment, but according to the European Commission’s statement the company cooperated “beyond its legal obligation” and in return received a 40 percent fine reduction.