The Nike 'Jumpman' logo in question.

Copyright battles are nothing new in the world of freelance photography, but a lawsuit filed in federal court this week by Jacobus Rentmeester against Nike is particularly interesting. Rentmeester claims that Nike ripped off a photo he shot of Michael Jordan back in 1984 for Time Magazine, by reshooting a nearly identical image, after originally licensing his. The new image was then used as the basis for the Nike Jordan 'Jumpman' logo, a now billion dollar Nike brand.

Here's the full story: In 1984, Rentmeester was assigned to photograph a then college-age Michael Jordan for Time. The gig was a freelance assignment and Rentmeester retained the rights to the image. Later that year, Nike approached Rentmeester about using two of the 35mm transparencies from the shoot for marketing. Rentmeester was paid $150 for the limited use. A few months later, Nike gave Rentmeester an additional $500 to continue using the image.

In February 1985, Nike reshot the Jordan jump photo. Looking at the two side-by-side, it certainly looks like Nike's version could be based on the original by Rentmeester. He seemed to think so too, and sued Nike. In the end, he was awarded $15,000 and Nike was given a two year license to continue using their reshot Jordan image. That image of course became the basis for the modern Jordan Jumpman logo we've all come to know.

The original Rentmeester photo of Jordan shows the soon-to-be famous basketball star dunking not in his normal game-day style, but rather in a manner directed specifically by Rentmeester. The look Rentmeester wanted was similar to a ballet technique known as ‘grand jeté,' which is a long horizontal jump where the individual does a split mid-air.  

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Rentmeester registered his original image with the United States copyright office a little over a month ago, more than likely in preparation for this lawsuit. But is 30 years too long for him to make a legitimate claim? It's hard to say.

We reached out to  attorney Bert P. Krages for an expert opinion. Read his statement below.

Bert P. Krages is an Oregon-based attorney  specializing in intellectual property law, photographers' rights and environmental law. He has several books to his name including, 'Legal Handbook for Photographers: The Rights and Liabilities of Making Images.' 

His Website also includes a free downloadable PDF that lists out the rights photographers should expect in the public domain.

"This is certainly an interesting case. Copyright cases can be deceptively complicated and this one has more complications than most. One of the elements of copyright infringement is that an ordinary observer would have to find the works to be substantially similar, or expressed another way, that the 'total concept and feel' of the works are substantially the same.

At one level, the Nike photo and logo are similar to the Rentmeester photo in that they depict a basketball player in midair with extended legs and holding the ball high over his head with his left arm. On the other hand, the Nike photo and the logo show Jordan with straight legs and arms whereas the Rentmeester photo shows some curvature in the legs and left arm. Also, in the Rentmeester photo the right arm is held near shoulder level instead of at waist level. So the major issue in this case could come down to whether the Nike photo and logo are seen substantially as copies or as independently-created variations of a jumping basketball player. Cases involving 'recreations' or 'borrowings' of existing works have gone both ways, depending on the nature of the subject, the degree of similarity, and how the copied portion is used. 

Another issue is the length of time that has passed between the time the alleged infringements began and the filing of the lawsuit. According to the complaint, Rentmeester accused Nike of infringing the photograph in 1985 and was paid $15,000 for a two year license. The Nike photo and logo were used long after 1987 but no suit was filed until 2015. Although the length of time alone is not a defense to liability in this matter because Nike continues to use the works, it could be a grounds by which the court could limit damages significantly. 

Finally, the U.S. Court of Appeals for the Ninth Circuit (which is the relevant appellate court) issued an opinion last year in the Garcia v. Google case in which they held that an actress had a copyright interest in a film because her performance required creativity. Although this opinion has been widely criticized, and may be retracted by the Ninth Circuit before too long, it will be interesting to see if Michael Jordan is interjected into the case. According to the complaint, Jordan was basically striking a choreographed pose when Rentmeester took the photo. If Jordan claims a copyright interest in the work, it is possible that he could assert it in a manner that would benefit Nike."

We'll keep our eyes on this case and update you when we find out more. In the mean time, what do you think? Does Rentmeester deserve compensation? Or does Nike own the logo fair and square? Let us know in the comments below.