## Facts

- In 1984, photographer Jacobus Rentmeester photographed Michael Jordan for a magazine feature, depicting Jordan leaping toward a hoop with a basketball raised, shot from a low angle against a clear sky on an outdoor grassy area with a freestanding hoop placed by the photographer.
- Rentmeester obtained a copyright in the photograph.
- Nike later obtained limited permission to use Rentmeester’s photograph, then commissioned a separate Jordan photograph featuring a similar general concept (a leaping Jordan) but with different compositional choices, including setting and arrangement of elements.
- Nike used its commissioned photograph to develop the “Jumpman” logo, a silhouette used in Air Jordan branding.
- Rentmeester sued Nike in federal court alleging copyright infringement by Nike’s photograph and the Jumpman logo, and related claims premised on alleged license overreach and continued infringement within the limitations period.
- The district court granted Nike’s Rule 12(b)(6) motion and dismissed the complaint with prejudice after comparing the works themselves.
- Rentmeester appealed.

## Issues

1. Whether Nike’s photograph and the Jumpman logo unlawfully appropriated protectable expression from Rentmeester’s photograph under the substantial-similarity standard.
2. How copyright’s idea–expression distinction applies to photographs, including whether elements such as pose and other objective components are protectable and how they should be compared.

## Decision

- The Ninth Circuit affirmed dismissal with prejudice.
- The court accepted that Rentmeester plausibly alleged ownership of a valid copyright and assumed, for purposes of the appeal, that Nike had access and may have copied at a conceptual level.
- The court held that Rentmeester failed to plausibly allege unlawful appropriation because Nike’s works were not substantially similar to Rentmeester’s photograph in protectable expression as a matter of law.
- The court held the Jumpman logo was even less similar to Rentmeester’s photograph than Nike’s photograph, reinforcing the absence of infringement.

## Legal Principles

- Copyright protects expression, not ideas; in photography, individual “objective” elements (e.g., subject matter, pose, lighting, camera angle) are not protected in isolation.
- Protectable expression in a photograph lies primarily in the photographer’s original selection and arrangement of elements as a whole.
- A pose or general concept (such as a leaping basketball player) is not itself copyrightable; protection extends only to the particular way the idea is expressed through compositional choices.
- Copyright infringement requires both copying and unlawful appropriation; even if copying is assumed, liability turns on substantial similarity of protectable expression.
- Courts may decide substantial similarity as a matter of law at the pleading stage when comparing the works shows no reasonable factfinder could find unlawful appropriation.

## Conclusion

The Ninth Circuit held that, after filtering out unprotectable ideas and general concepts, Nike’s commissioned Jordan photograph and the Jumpman logo did not appropriate Rentmeester’s protectable photographic expression, so the complaint was properly dismissed with prejudice.


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