July 27, 2021

Volume XI, Number 208

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July 26, 2021

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Heir Jordan: Did Nike Improperly Inherit the Jumpman Logo?

Air Jordan.  This phrase is both a nickname for Hall of Fame basketball player Michael Jordan and the brand name of the most successful basketball sneaker line in the world.  In 1984, Nike signed Jordan to a five-year deal for a then-record $2.5 million.  The deal was a slam dunk: the company sold $100 million worth of the first iteration of Air Jordan shoes in the first year of the deal.  Since then, there have been 28 more versions of shoes – not including variations – in addition to several items of related apparel released under the Brand Jordan umbrella.  In 2014 alone, these Jordan products generated $3.2 billion in retail sales.

For decades, Nike's Brand Jordan has been recognized by its "Jumpman" logo, the enduring image of Jordan sailing toward the basket in grand jeté pose, ball in outstretched hand.  Now, a well-respected photographer, Jacobus Rentmeester, is claiming that Nike created this logo using a picture he took of Jordan for a special issue of LIFE magazine for the 1984 Summer Olympics.  Rentmeester believes that he retained the copyright on the image despite working as a contracted photographer for the magazine the year it was taken.  Shortly after publication, Nike paid Rentmeester $150 for use of two of the transparencies, which, according to the lawsuit, were only intended to be part of company presentations.  Coincidentally, Nike recreated a similar photo of Jordan jumping in front of the Chicago skyline shortly thereafter.  This photo eventually led to the Jumpman silhouette and, now, Rentmeester's opposition (which perhaps was inspired by the Supreme Court's Petrella decision interpreting the viability of infringement actions involving older works).  Although the image was legally copyrighted upon publication, Rentmeester could not sue for infringement in federal court until December 18, 2014, the date he registered the photo with the U.S. Copyright Office.

With the registration in hand, Rentmeester is now suing Nike in Oregon federal court for copyright infringement and claims under the Digital Millenium Copyright Act (DMCA) for alleged removal of copyright management information from copies of the original photo. (Rentmeester v. Nike, Inc., No. 15-00113 (D. Or. filed Jan. 22, 2015)).   Rentmeester is seeking, among other things, a permanent injunction to bar Nike from using the logo and any profits attributable to infringement of his copyright.  Rentmeester claims that he created an original pose which was not reflective of Jordan's natural jump or dunking style.  Rentmeeser admits that Nike paid him $15,000 in March 1985 for a limited license to use the image on billboards and posters for two years, but alleges that the company exceeded the agreement and fouled out by using a similar depiction of Jordan in later marketing materials, as well as when they created the Jumpman logo in 1987.   According to Rentmeester, he planned the shot-turned-silhouette with artistic precision.  The lawsuit explains that, over approximately half an hour, Rentmeester guided Jordan to leap unnaturally and hold the ball using his nontraditional left hand.  This process required persistence and repeated attempts, as it was not something Jordan had done before.  Such efforts, according to Rentmeester, clearly established the distinctive and original elements of the copyrighted photo.  Months afterward, though, Nike grabbed the rebound and took a similar photo of Jordan, this time in front of the Chicago skyline.  Objectively speaking, this iteration had its differences, but it still possessed the elements of wider-than-normal spread legs and Jordan palming the ball in his outstretched left hand.  Far from an unlawful double dribble, Nike claims that, with this new photo, it created its Brand Jordan silhouette, which gained notoriety as the Hall of Famer's stardom rose.

It is now years after Michael Jordan has retired from basketball, but Brand Jordan is still in Nike's "starting five," earning significant revenue for the apparel giant.  Rentmeester hopes his claims are a "lottery pick" of sorts and that he can recover substantial monetary damages that compensate him for Nike's alleged use of his copyrighted image, which has become an integral part of the company's marketing strategy.  Without an imminent settlement, it may be up to the court to decide whether Nike committed a foul on an apparent steal or whether the iconic logo was a proper (and lawful) substitiution of the original image.

© 2021 Proskauer Rose LLP. National Law Review, Volume V, Number 66
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L. Robert Batterman, Labor, Management, Sports, Attorney, Proskauer, Law Firm
Partner

A partner since 1974, Bob Batterman has considerable experience representing both individual employers and multi-employer groups in union relations and collective bargaining. Much of Bob’s time is spent in day-to-day contact with clients, often in “crisis” situations where a rapid resolution of union-related problems is vital.

Bob is a senior member of our nationally recognized Sports Law Group, serving as labor counsel to the National Hockey League, Major League Soccer and the National Football League. He has extensive experience in collective...

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Michael Cardozo, Commercial Litigation Attorney, Proskauer, Law Firm
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Michael A. Cardozo is a Partner in Proskauer’s Litigation Department and the former Corporation Counsel for the City of New York. As the city's 77th and longest serving Corporation Counsel, he was the city’s chief legal officer, headed the city's Law Department of more than 700 lawyers, and served from 2002 through 2013 as legal counsel to Mayor Michael Bloomberg, elected officials, the city and its agencies.

Michael’s experience managing large litigations in both the private and public sectors provides him with unique insight into litigation assessments, risk management and...

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Robert L. Freeman, Technology, Media, Sports, Attorney, Proskauer, Law Firm
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Robert E. Freeman is a Partner in the Corporate Department and a member of the Sports Law Group and Technology, Media & Communications Group.

Rob began his career as an intellectual property litigator before shifting the focus of his practice to intellectual property-related transactions. Today, he helps lead a team of media, sports and entertainment attorneys representing clients such as Time Warner Cable, Discovery Communications, the WTA, the Orlando Magic, Scripps Networks, Armstrong Cable, the PAC-12, Insight Communications and CBS Sports. Rob’s work for these clients...

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Howard Ganz, Sports, Employment Attorney, Proskauer, Law Firm
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Howard Ganz is co-head of the Sports Law Group and former co-Chair of the Labor & Employment Law Department.

Howard represents and counsels clients with respect to a wide variety of labor and employment matters, such as employment discrimination, sexual harassment, wrongful discharge, defamation, breach of contract, discipline, and large-scale reductions-in-force. His litigation experience has run the gamut, from single plaintiff lawsuits to major class actions, in federal and state courts in New York and elsewhere. The clients Howard has represented include the National...

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Wayne D. Katz, Finance, Sports, Attorney, Proskauer, Law Firm
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Wayne D. Katz is a Partner in the Corporate Department, specializing in the sports industry.

Wayne's experience includes the representation of the National Basketball Association and National Hockey League in their various corporate matters, including team ownership transfers and team financings. Major transactions he has worked on for the leagues include the NBA’s purchase and sale of the New Orleans Hornets; the NBA's grant of expansion franchises to Toronto, Vancouver and Charlotte; the NHL's grant of expansion franchises to Nashville, Atlanta, Columbus and Minnesota; the NBA’s $...

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