The "Jumpman" Air Jordan logo has become as synonymous with basketball as Michael Jordan himself. According to the Nike annual report, Air Jordans totaled $3.2 billion in retail sales in 2014 alone. However, photographer Jacobus Rentmeester is jeopardizing the future of the brand by filing suit against Nike for copyright infringement, and for injunctive relief and damages.
According to Rentmeester, the Jumpman logo is a replica of a picture that he took of Jordan in 1984. He granted temporary access to the image to Nike shortly after for $150.
If Rentmeester were to be successful in this suit, damages would be worth millions of dollars at least, and production of Air Jordans would cease immediately. But before we "jump" to any conclusions, let's look at what this case will hinge upon...
From the seminal case of Haelan Labs to the Jireh/Tiger Woods case to the more recent Michael Jordan vs. Jewel Tea/Osco case, the history of publicity rights and infringement claims have clearly established what Nike and Rentmeester must prove in order to be victorious.
Rentmeester must, in general terms, prove at least one of the following:
1. Nike's actions were primarily commercially driven;
2. Nike violated his copyright of the image; and/or
3. Nike's different logo did not have a "transformative" effect on his photograph, so as to merit First Amendment protection.
On the other side, Nike must prove at least one of the following:
1. Nike "transformed"Rentmeester's image through substantially creative work, so as to merit First Amendment protection;
2. Nike fairly used the image by "creatively" changing it's nature and adding the Chicago skyline; and/or
3. Nike freely expressed their First Amendment right in their transformative use of the photo to "create" the Jumpman logo.
When it comes to copyright infringement cases, the ANALYTICAL mechanics and COURT tests are well established; however, the outcomes are certainly not predictable. As with most legal outcomes, the Court venue is very important, because no two courts are likely to decide a case with the same reasoning, per recent precedents in this rapidly changing area of the law.
With that in mind and given that this case is in its infancy, Rentmeester appears to have a case that should at least concern Nike. Clearly the Jumpman logo was used by Nike to drive a brand that has earned them billions of dollars; clearly the images below look very similar and not particularly "transformative;" clearly $150 in 1984 does not seem commensurate with the millions in net profits that Nike has since made.
On the other side, in ETW v. Jireh, the work was (very) arguably "not transformative," but the court determined that it won on summary judgment on First Amendment grounds.
Michael Jordan vs. Jewel Tea/Osco, however, recently came out in favor of the Athlete. In Jewel/Osco, the court found that a grocery store in Chicago using the below image violated Michael Jordan's publicity rights. For more on the case, check out this link.
As updates become available, I will certainly analyze them further...
You Make the Call:
Looking at the image, do you believe that Nike's logo is "transformative"? Do you believe that Rentmeester has a claim to an injunction and then damages/royalties on all of Nike's "Jumpman"-based revenues? Should Nike be forced to stop producing Air Jordans?
We look forward to hearing from you, and continuing this dialogue, as the case progresses.