On Tuesday, February 27, a 2-1 split Ninth Circuit panel rejected a copyright suit against Nike Inc. alleging the athletic company’s “Jumpman” logo infringed on a photographer’s copyright. The court ruled that the logo was not substantially similar enough to Jacobus Rentmeester’s photo of Jordan from a 1984 issue of LIFE magazine. Rentmeester originally had the idea to take the photograph of retired all-time great basketball player Michael Jordan performing a leaping pose that resembled a grand jeté. This photo served as the inspiration for Nike’s recreation of the photograph with a different backdrop and slightly different limb positions. “While the photos embody a similar idea or concept, they express it in different ways,” the majority opinion said.

This ruling is the culmination of a suit filed against Nike by Rentmeester in January 2014, accusing Nike of unlawfully replicating the image he took of Jordan. The company then used this recreation to create the now world-famous “Jumpman” logo on all Jordan branded Nike apparel. After the 1984 LIFE magazine was released, Nike approached Rentmeester looking to license the photo for certain promotional purposes. In 1985 the two sides reached an agreement totaling to $15,000 for a two-year license of the image, but, as the suit alleges, Nike continued to use the silhouetted image after the licensing agreement ended.

In June 2015 a district court judge dismissed the case, finding that the images were not similar enough to embody infringement. That September, Rentmeester appealed the ruling to the Ninth Circuit, arguing that the dismissal was premature since the parties hadn’t been allowed discovery.

During oral arguments, Rentmeester’s attorney presented two arguments. First, that the similarities of the two images outweighed the differences between the logo and the photograph. Secondly, that the court should have applied the Ninth Circuit’s inverse-ratio rule, requiring courts to apply lower standards for similarity between two artworks if a plaintiff can prove that the defendant had easy access to the plaintiff’s work. The court rejected these arguments on Tuesday, stating that the two photographs were not substantially similar and that Rentmeester could not copyright a pose. On the inverse-ratio rule, the court stated that it did not apply to the issue on appeal and thus did not help Rentmeester’s argument.

The lone dissenter in the case, Judge Owens, dissented on the grounds that the dismissal was too early in the life of the case and should be reserved for a motion for summary judgment. He did agree that claims specifically regarding the “Jumpman” logo could be tossed due to its thin copyright protection. As could be expected, representatives from Nike considered the ruling a “true victory” for the logo. Rentmeester’s counsel did not immediately respond to requests for a comment.

LJ Sanchez is a Sports Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2020).

Image: Steve Lipofsky at basketballphoto.comJordan by Lipofsky 16577CC BY-SA 3.0