On January 2, 2019, a 25-page amicus brief was filed by the American Society of Media Photographers and the National Press Photographers Association explaining why a photograph should share the same protections as novels or songs, fighting a split Ninth Circuit ruling upholding a decision that found Nike was permitted to copy an image for its logo.
The two industry groups mentioned above have entered the debate in a bid to revive a photographer's claims that Nike Inc. is unfairly using his famous 1984 image of Michael Jordan for its “Jumpman” logo, arguing before the Supreme Court that Ninth Circuit's dismissal of the case strips away photographers' copyright rights to their art.
In February of 2018, the Ninth Circuit affirmed a lower court's decision that while it is apparent Nike copied the photo, the company hadn't replicated “the particular selection and arrangement” of it, deeming the case moot. The industry group said “the ruling discredits the art of photography and would discourage photographers from creating new images…Leaving this area of law jumbled and confused with conflicting opinions would chill the creation of new works and give the green light to infringers the world over…These creators need clarity.”
Jacobus Rentmeester, the photographer of the famous Jumpman photo, filed his suit against Nike in 2014 alleging that Nike paid him $15,000 in 1985 to use his photo for two years and only in certain circumstances. Yet the athletic apparel and equipment giant has continued to use the image in its logo. A district judge dismissed the case in 2015, ruling the logo wasn't similar enough to the photo to constitute copyright infringement. Later that year, Rentmeester appealed the ruling to the Ninth Circuit. In July of 2017, the Ninth Circuit agreed to wait on finalizing its subsequent ruling against him while he took his case to the Supreme Court, which is still under review.
“Photographers have long had to fight for the validity of their art form…and the Ninth Circuit's ruling would insult photographers all over the world as it likens their work ‘to a factual compilation such as a phone book,'” the associations said in their amicus brief. They added, “the court also improperly analyzed “substantial similarity” when it decided Nike's logo didn't copy enough elements to count as copyright infringement.”
The American Society of Media Photographers is represented by Thomas B. Maddrey.
The National Press Photographers Association is represented by Mickey H. Osterreicher and Alicia W. Calzada.
Rentmeester is represented by Eric B. Fastiff, Dean M. Harvey and Katherine C. Lubin of Lieff Cabraser Heimann & Bernstein LLP and Deepak Gupta, Joshua Matz and Rachel Bloomekatz of Gupta Wessler PLLC.
Nike is represented by Dale M. Cendali of Kirkland & Ellis LLP.
The case is Jacobus Rentmeester v. Nike Inc., case number 18-728, in the Supreme Court of the United States.
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