Copyright: Nike wins appeal case

By Prof Dr Ian Blackshaw

NIKE, the leading sportswear company, on 27 February 2018, won an important copyright appeal case in the US.

This case, Rentmeester v Nike Inc., 9th US Circuit Court of Appeals, No. 15-35509, concerned a claim by a renowned photographer that NIKE has misappropriated his 1984 iconic photograph of basketball superstar, Michael Jordan, using it to create its silhouetted ‘Jumpman’ logo.

In a 2-1 decision, the Appeal Court held that the NIKE photo, taken several years later and also showing Jordan in a leaping pose, inspired by ballet’s grand jete, were not “substantially similar” by reason of differences in setting, lighting and other elements.

This meant that the NIKE logo was also acceptable, and the Court added that Jordan’s pose per se could not be the subject of copyright protection.

Circuit Court Judge, Paul Watford, giving the judgement of the Court, wrote that:

“Copyright promotes the progress of science and the useful arts by encouraging others to build freely upon the ideas and information conveyed by a work…. That is all Nike’s photographer did here.”

However, as mentioned above, there was a dissenting judgement, Circuit Judge, John Owens, called the dismissal of the copyright claim as “premature”, and added:

“Whether the Nike photo is substantially similar is not an uncontested breakaway layup.”

Jordan, who is now 55 years old and the owner of the NBA ‘Charlotte Hornets’, is reputedly worth US$1.65 billion.

The Jordan brand generates US$3.1 billion in annual revenues for NIKE!

Prof Dr Ian Blackshaw may be contacted by e-mail at ‘ian.blackshaw@orange.fr’