In 1984, Life magazine published photographer Jacobus Rentmeester’s photo of Michael Jordan. Rentmeester instructed Jordan to dunk in an unusual basketball pose inspired by ballet’s grand jeté, opted for an isolated grassy knoll over a basketball court, mounted a backboard and hoop on a tall pole to create the illusion of added height, and—through technical choices such as powerful strobe lights, a fast shutter speed, and a low camera angle—captured Jordan’s soaring figure silhouetted against a cloudless blue sky.

Shortly after, Nike contacted Rentmeester. Under a limited license, Rentmeester provided two color transparencies to Nike for $150, authorizing their sole use in slide presentations. In late 1984 or early 1985, Nike retained a different photographer to shoot Jordan. Nike’s version featured Jordan leaping toward a basketball hoop in a similar legs extended position. Jordan also held the ball in his left hand above the head. The photo was taken outdoors, from a comparable angle, and produced the same silhouetted figure against the Chicago skyline.

Rentmeester threatened to sue Nike for breach of the limited license. In March 1985, the two parties entered into a second agreement. Nike paid Rentmeester $15,000 for the right to continue using its Jordan photo on posters and billboards in North America for two years.

In 1987, Nike created the “Jumpman” logo from its photograph of Jordan. Widely used in marketing and sales campaigns over the past three decades, the logo has become one of Nike’s “most recognizable” trademarks.

In 2014, Rentmeester registered his photo with the Copyright Office. In January 2015, Rentmeester filed suit against Nike—alleging that both the Nike photo and Jumpman logo infringed the copyright in his 1984 photo of Jordan. Rentmeester restricted his damages claim to infringement within the preceding three years to comply with the Copyright Act’s statute of limitations and forestall the defense of laches from his 30-year delay in commencing litigation.

The district court granted Nike's motion to dismiss and Rentmeester appealed to the Ninth Circuit. To state a claim for copyright infringement, Rentmeester must plausibly allege that (1) he owns a valid copyright in his photograph of Jordan, and (2) Nike copied protected aspects of the photo’s expression through “copying” and “unlawful appropriation.” The first element is plausibly met because the photograph is “an original work of authorship” and Rentmeester has owned the copyright since 1984.

Substantial similarity has different meanings in the context of copying and unlawful appropriation. To prove copying, the similarities between the two works need not be extensive nor involve protected elements of plaintiff’s work—“[t]hey just need to be similarities one would not expect to arise if the two works had been created independently.” To prove unlawful appropriation, “the similarities between the two works must be ‘substantial’ and they must involve protected elements of the plaintiff’s work.” The appellate court concluded that a combination of Nike’s access to Rentmeester’s color transparencies under a limited license and “obvious conceptual similarities between the two photos” supported a plausible allegation of copying. It then specified that the copyrighted photograph was entitled to the broadest protection because of its highly original nature—Rentmeester “chose not to be bound by conventions commonly followed in photographing a basketball player attempting to dunk.” The remaining, contested component on appeal was unlawful appropriation.

The Ninth Circuit uses a two-part analysis to determine whether two works are substantially similar: the extrinsic and intrinsic tests. The extrinsic test, applied by the appellate court, assesses objective similarities based only on protectable elements. The intrinsic test asks the jury to evaluate the works' overall “total concept and feel.” On a motion to dismiss, the appellate court only applies the extrinsic test. Failure to allege substantial similarity under this standard subjects the claim to dismissal as a plaintiff must satisfy both tests to prove infringement. The appellate court held that Nike’s photo and Jumpman logo did not copy enough protected expression from Rentmeester’s original work to meet the “substantial similarity” standard for unlawful misappropriation.

There are two “highly-original” elements of Rentmeester’s work—the subject matter and setting. In distinguishing Harney (a First Circuit case in which the disputed works both featured a child riding piggyback on her father’s shoulders), the appellate court emphasized that Harney’s pose was not conceived by the plaintiff photographer and was “so commonplace as to be part of the public domain.” Rentmeester’s concept of Jordan leaping in a grand jeté–inspired position, by contrast, was a product of his own “intellectual invention.” Even so, Jordan’s pose itself—considered in isolation from other expressive elements and regardless of how original— falls outside the scope of protectable expression. The appellate court emphasized that copyright protects only original expression, not ideas. Nike was therefore free to “borrow” Rentmeester’s concept, provided its resulting image did not copy Rentmeester’s expressive details —such as Jordan’s limb orientation, which created a vertical rather than horizontal forward propulsion. The appellate court then acknowledged that Nike’s photographer similarly opted for an outdoor setting that lacked conventional basketball court features. Yet, the two photographs convey this element through distinct expressive choices. While Rentmeester captured Jordan on a grassy knoll beneath an unusually high rim to create a “whimsical” scene that seems well above what Jordan could dunk on, Nike’s image excluded the foreground and presented a standard-height hoop in a more realistic, urban environment.

Another conceptual overlap is shooting from a low camera angle—which the appellate court deemed a “far less original element” of Rentmeester’s work. The technique is widely used to create silhouetted figures against the sky. Expressive differences were also present: Rentmeester’s photo had a clear blue sky, the sun “loom[ing] large in the lower right-hand corner of the image,” and Jordan partially cast by shadows; Nike’s photo featured Chicago’s skyline “silhouetted against the orange and purple hues of late dusk or early dawn,” no sun, and a brightly lit Jordan.

Finally, the arrangement of visual elements differs materially. In Rentmeester’s photography, the hoop is mounted on a tall pole anchored to the ground. Its placement within the frame counterbalances a “slightly left of center” Jordan—making him appear smaller within a wide, open composition. In contrast, the hoop in Nike’s image “takes up the entire right border of the frame” to emphasize Jordan’s central placement and visual dominance. Rentmeester and Nike’s photographer also “angled” and “lit” the hoops “differently toward the viewer,” fulfilling distinct expressive functions.

The appellate court concluded that Rentmeester’s photo and Nike’s photo are not substantially similar as a matter of law. Elements like subject matter, pose, setting, and camera angle are not protectable in isolation. Rentmeester cannot lay claim to these general ideas as other artists are entitled to use them in line with copyright’s intention to promote creativity. Nike exercised its independent artistic judgment in the selection and arrangement of these visual elements, resulting in a composition that is meaningfully distinct from Rentmeester’s work despite the works’ shared ideas.

The same conclusion applies to the Jumpman logo, which extracts Jordan’s figure from Nike’s image. As the appellate court already found that Jordan’s figure in Nike’s image was materially different, the logo’s stylization as a black silhouette renders the logo “even less similar to Rentmeester’s photo,” and thus the logo is also not substantially similar to Rentmeester’s photo as a matter of law.  

The Ninth Circuit affirmed the district court’s granting of Nike’s motion to dismiss.

Ed. Note: In Skidmore v. Led Zeppelin, the Ninth Circuit rejected the inverse ratio rule in copyright infringement cases which was discussed in Rentmeester. This holding partially overruled Rentmeester but was immaterial to its core analysis of unlawful appropriation under the substantial similarity standard.

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David Levitt on “Iconic Michael Jordan Photograph Not Infringed – Ninth Circuit” (IP Watchdog)