On February 27, 2018, the United States Court of Appeals for the Ninth Circuit held that photographer Jacobus Rentmeester had failed to demonstrate that Nike infringed Rentmeester’s copyright in a photograph of Michael Jordan. The decision triggered extensive debate about the scope of copyright protection for photographs. On December 3, 2018, Rentmeester filed a petition for certiorari in the United States Supreme Court, asserting that the Ninth Circuit’s decision conflicts with the law of the First, Second, and Eleventh Circuits. Nike’s opposition is due on February 6, 2019. These are filings to watch. The Ninth Circuit’s decision and the parties’ competing filings raise critical questions about photography that impact the law of substantial similarity and, indirectly, the hotly debated topic of fair use.
I. Background -
In 1984, Jacobus Rentmeester made a photograph of Michael Jordan jumping toward a basketball hoop in the style of ballet’s grand jeté with a basketball raised above his head in his left hand. Shortly after, in 1984 or 1985, Nike commissioned its own photograph of Jordan that was later used in its Air Jordan marketing campaign and for the famous “Jumpman” logo. Nike was aware of Rentmeester’s photograph. Here are the two photographs...
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