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Rentmeester v. Nike, Inc. - 883 F.3d 1111 (9th Cir. 2018)


To state a claim for copyright infringement, a plaintiff must plausibly allege two things: (1) that he owns a valid copyright, and; (2) that the alleged infringer copied protected aspects of the copyright. The second element has two distinct components: copying and unlawful appropriation. Proof of copying by a defendant is necessary because independent creation is a complete defense to copyright infringement. No matter how similar the plaintiff's and the defendant's works are, if the defendant created his independently, without knowledge of or exposure to the plaintiff's work, the defendant is not liable for infringement. Proof of unlawful appropriation, that is, illicit copying, is necessary because copyright law does not forbid all copying.


Plaintiff Jacobus Rentmeester filed a lawsuit in federal district court against defendant Nike, Inc., alleging that Nike infringed his copyright in a photograph of Michael Jordan when Nike commissioned its own photograph of Jordan and then used that photo to create its "Jumpman" logo. Rentmeester's famous photograph was taken in 1984, and it originally appeared in Life magazine as part of a photo essay featuring American athletes who would be competing in the 1984 Summer Olympic Games. Rentmeester sought damages under the federal Copyright Act. The district court granted Nike's motion to dismiss under Fed. R. Civ. P. 12(b)(6). The court dismissed Rentmeester's claims with prejudice after concluding that neither the Nike photo nor the Jumpman logo infringed Rentmeester's copyright as a matter of law. Rentmeester appealed.


Did Nike infringe Rentmeester's copyright when it commissioned its own photograph of Jordan and then used that photo to create one of its most iconic trademarks?




A panel of the court of appeals affirmed the district court's judgment. The court held that while the photographs at issue shared similarities in general ideas or concepts, Rentmeester did not plausibly allege that his photo and the Nike photo were substantially similar under the extrinsic test because there were differences in selection and arrangement of elements, as reflected in the photos' objective details. Such differences, the court ruled, precluded as a matter of law a finding of infringement. Nike's photographer made choices regarding selection and arrangement that produced an image unmistakably different from Rentmeester's photograph in material details, disparities that no ordinary observer of the two works would be disposed to overlook. The Jumpman logo also was not substantially similar to Rentmeester's photo, the court ruled.

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