Since the advent of photography as an art form, photographers have fought relentlessly to have their work taken as seriously as other types of artists’. And as technology has advanced over the last several decades, allowing photographers and digital/graphic artists to edit and manipulate their work into something that might be considered iconic, copyright laws have taken shape to better protect the creators of some of our favorite art and logos. One such case occurred in 2015 when photographer Jacobus Rentmeester accused Nike of manipulating his image of Michael Jordan in a wide-stance jump to use for its famous ‘Jumpman’ Air Jordan logo (Kyle Jahner, 2018). The full article can be found on Bloomberg Law, but here is a short recap of the case: Rentmeester’s original photograph was used in the 1984 issue of the now-defunct Life Magazine (pictured below), however, he claimed that he was owed copyright protection because he felt Nike’s Air Jordan logo made just a few alterations to his photo that is now widely known as one of Nike’s most famous graphics (also pictured below). Rentmeester claims that besides using his original image to create the Jumpman silhouette logo, Nike used their version of his photograph for ad campaign/marketing purposes - specifically surrounding the launch of Nike’s Air Jordans (Jahner, 2018). And while the photographer said that Nike did give him a two-year, $15,000 payment in exchange for being able to use a manipulated version of his original photo for signs, posters, billboards and other marketing collateral in the North American market, Rentmeester claims that Nike used the image for marketing beyond the parameters of their original agreement.
In the end, the U.S. Court of Appeals for the Ninth Circuit dismissed Rentmeester’s lawsuit, stating that there were enough differences between his photograph and Nike’s Jumpman logo to put the case to rest. Kyle Jahner, the article’s author, states that this case could set a precedent clarifying if and when characteristics in certain photographs are warranted the same copyright protections as other art forms, such as music and paintings. Essentially, it will be up to the court to decide how ‘substantially similar’ the elements of an image are to an original photograph to be considered copyright infringement (Jahner, 2018). It’s a challenge to say whether or not Nike ‘ripped off’ Jacobus Rentmeester’s photograph for their own benefit, especially when there’s no definitive proof that this was Nike’s intent. I also think there’s a danger in creating a black-and-white precedent for every art-related copyright lawsuit since every case is so unique and because there’s no way of truly knowing whether an artist used another artist’s work to pass off as his/her own, or if they simple drew inspiration from the original work. Additionally, if it’s up to the juries to decide whether or not copyright laws have been violated, there’s a good chance these types of lawsuits will increase in number, become much more drawn out, and further restrictions will be placed on future artists’ work. By now, I imagine most photographers and artists realize the importance of getting the proper copyright and licensing for their work but this won’t always help clear the muddied waters of cases such as the Nike vs. Rentmeester one. The general rule of thumb is that in the case of photography, it’s the one who clicks the button that owns the copyright on that image. But with Nike, there may have been some ‘work-made-for-hire’ circumstances that caused contention between the two parties. After having read some commonly asked copyright law questions on photographer Ken Kaminesky’s blog, it may be that Nike’s Jumpman logo could be considered a derivative work (although it’s doubtful Nike would admit this). Kaminesky defines a derivative work as “different enough from the original to be regarded as a new work - in other words, it must contain some substantial, not merely trivial, originality. The threshold for originality in a derivative work is higher than that required for the original work.” In conclusion, I might agree that Rentmeester’s Michael Jordan photo is oddly similar to that of the Nike Jumpman graphic, but there’s no way to definitively say that Nike ‘stole’ the image. There are several substantial differences between the photograph and Nike’s Jumpman logo - namely the photographic quality, the landscape background, and Jordan’s leg position - to where I believe the court made the best ruling considering the evidence they were given. In a world where original content and original artwork can be so quickly put on display and disseminated to large amounts of people at once, it’ll become that much harder to say with all confidence what is truly an original work and what isn’t. But as long as artists from all mediums take care to copyright their work, attribute credit where it is due, and make their work their own, they likely won’t find themselves battling big corporations in court. Bibliography Jahner, K. (2018). Nike 'Jumpman' Logo Takes Center Court in Photo Copyright Fight. Retrieved February 16, 2019, from https://news.bloomberglaw.com/ip-law/nike-jumpman-logo-takes-center-court-in-photo-copyright-fight Kaminesky, K. Photography and Copyright Law. Retrieved February 16, 2019, from https://blog.kenkaminesky.com/photography-copyright-and-the-law/
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