No. 18-
`
`
`
`IN THE
`Supreme Court of the United States
`
`JACOBUS RENTMEESTER,
`Petitioner,
`
`v.
`NIKE, INC.,
`Respondent.
`
`
`On Petition for a Writ of Certiorari to
`the United States Court of Appeals
`for the Ninth Circuit
`
`PETITION FOR A WRIT OF CERTIORARI
`
`
`
`
`
`
`ERIC B. FASTIFF
`DEAN M. HARVEY
`KATHERINE C. LUBIN
`LIEFF, CABRASER, HEIMANN
`& BERNSTEIN, LLP
`275 Battery Street, 29th Floor
`San Francisco, CA 94111
`(415) 956-1000
`
`
`DEEPAK GUPTA
` Counsel of Record
`JOSHUA MATZ
`GUPTA WESSLER PLLC
`1900 L Street, NW, Suite 312
`Washington, DC 20036
`(202) 888-1741
`deepak@guptawessler.com
`
`Counsel for Petitioner
`(continued on the inside cover)
`
`
`December 3, 2018
`
`
`
`
`
`
`
`IN THE
`Supreme Court of the United States
`
`JACOBUS RENTMEESTER,
`Petitioner,
`
`v.
`NIKE, INC.,
`Respondent.
`
`
`On Petition for a Writ of Certiorari to
`the United States Court of Appeals
`for the Ninth Circuit
`
`PETITION FOR A WRIT OF CERTIORARI
`
`
`
`
`
`
`ERIC B. FASTIFF
`DEAN M. HARVEY
`KATHERINE C. LUBIN
`LIEFF, CABRASER, HEIMANN
`& BERNSTEIN, LLP
`275 Battery Street, 29th Floor
`San Francisco, CA 94111
`(415) 956-1000
`
`
`DEEPAK GUPTA
` Counsel of Record
`JOSHUA MATZ
`GUPTA WESSLER PLLC
`1900 L Street, NW, Suite 312
`Washington, DC 20036
`(202) 888-1741
`deepak@guptawessler.com
`
`Counsel for Petitioner
`(continued on the inside cover)
`
`
`December 3, 2018
`
`
`
`
`
`CODY HOESLY
`LARKINS VACURA KAYSER LLP
`121 SW Morrison Street, Suite 700
`Portland, OR 97204
`(503) 222-4424
`
`Counsel for Petitioner
`
`
`
`
`
`
`
`
`
`
`
`
`
`-i-
`
`QUESTION PRESENTED
`Is copyright protection for a photograph limited
`solely to the photographer’s “selection and arrangement”
`of unprotected elements, as the Ninth Circuit held below,
`or does it also cover elements of the photograph that
`express original, creative judgments by the photogra-
`pher, as the First, Second, and Eleventh Circuits have
`held?
`
`
`
`
`
`
`
`
`-ii-
`
`TABLE OF CONTENTS
`Question presented ............................................................... i
`Table of authorities .............................................................. iv
`Introduction ........................................................................... 1
`Opinions below ....................................................................... 3
`Jurisdiction ............................................................................. 4
`Constitutional and statutory provisions involved .............. 4
`Statement ............................................................................... 5
`I. Protecting photographs under copyright law ...... 5
`A. The early years of photography .................. 5
`B. The origins of protection for
`photography ................................................... 7
`C. Consensus and conflict since Burrow-
`Giles .............................................................. 11
`II. Factual background ................................................ 13
`A. Rentmeester’s photographic artistry ....... 13
`B. Rentmeester staged and created a
`unique portrait of Michael Jordan for
`LIFE Magazine. ......................................... 16
`C. Nike’s Creative Director sees the
`photo, steals its original elements,
`pays Rentmeester when discovered,
`and then breaks that deal. .......................... 18
`III. Proceedings below ................................................. 20
`A. The district court ......................................... 20
`
`
`
`
`
`-iii-
`
`B. The court of appeals .................................... 21
`Reasons for granting the petition ..................................... 24
`I.
`The decision below creates a circuit split. ......... 24
`A. The First Circuit ......................................... 27
`B. The Second Circuit ...................................... 29
`1. Rogers v. Koons ................................... 29
`2. Leibovitz v. Paramount Pictures
`Corp. ...................................................... 32
`3. Mannion v. Coors Brewing
`Company .............................................. 33
`C. The Eleventh Circuit .................................. 35
`II. The decision below is incorrect and offers an
`ideal vehicle to address a vitally important
`issue. ....................................................................... 37
`A. This issue is exceptionally important. ...... 37
`B. This case is an excellent vehicle. ............... 37
`C. The decision below is wrong. ..................... 38
`Conclusion ............................................................................ 40
`
`
`
`
`
`
`
`
`
`
`-iv-
`
`TABLE OF AUTHORITIES
`
`Cases
`Bleistein v. Donaldson Lithographing Co.,
`188 U.S. 239 (1903) .................................................. 11, 12
`
`Burrow-Giles Lithographic Co. v. Sarony,
`111 U.S. 53 (1884) ........................................ 10, 31, 38, 39
`
`Enterprise Management. Ltd., Inc. v. Warrick,
`717 F.3d 1112 (10th Cir. 2013) ..................................... 38
`
`Feist Publications, Inc. v. Rural Telephone
`Service Co.,
`499 U.S. 340 (1991) .................................................. 12, 25
`
`Harney v. Sony Pictures Television, Inc.,
`704 F.3d 173 (1st Cir. 2013) .............................. 27, 28, 29
`
`Jewelers’ Circular Pub. Co. v. Keystone Pub. Co.,
`274 F. 932 (S.D.N.Y. 1921) ........................................... 12
`
`Leibovitz v. Paramount Pictures Corp.,
`137 F.3d 109 (2d Cir. 1998) ..................................... 32, 33
`
`Leigh v. Warner Bros.,
`212 F.3d 1210 (11th Cir. 2000) ............................... 35, 36
`
`Mannion v. Coors Brewing Co.,
`377 F. Supp. 2d 444 (S.D.N.Y. 2005) ..................... 34, 35
`
`Meshwerks, Inc. v. Toyota Motor Sales
`U.S.A., Inc.,
`528 F.3d 1258 (10th Cir. 2008) ............................... 10, 26
`
`Petrella v. MGM, Inc.,
`134 S. Ct. 1962 (2014) .................................................... 20
`
`
`
`
`
`-v-
`
`
`Rogers v. Koons,
`960 F.2d 301 (2d Cir. 1992) ......................... 29, 30, 31, 32
`
`SHL Imaging, Inc. v. Artisan House, Inc.,
`117 F. Supp. 2d 301 (S.D.N.Y. 2000) ............. 7, 9, 12, 24
`
`Southco, Inc. v. Kanebridge Corp.,
`390 F.3d 276 (3d Cir. 2004) ........................................... 26
`
`Wood v. Abbott,
`30 F. Cas. 424 (C.C. S.D.N.Y. 1866) .............................. 8
`
`Constitutional and statutory provisions
`17 U.S.C. § 102(a) .................................................................. 4
`
`17 U.S.C. § 102(b) .................................................................. 4
`
`17 U.S.C. § 106(2) .................................................................. 4
`
`28 U.S.C. § 1254(1) ................................................................ 4
`
`U.S. Const., Art. I, § 8 ........................................................... 4
`
` Legislative materials
`Act of March 3, 1865,
`38th Cong., 2d Sess., 16 Stat. 198 .................................. 8
`
`Other authorities
`1 Nimmer on Copyright § 2A.08[E][2] ................... 8, 24, 39
`
`2 Patry on Copyright § 3:118 ....................................... 11, 12
`
`2 The Law of Copyright § 14:28 ......................................... 24
`
`Tom Ang,
`Photography: The Definitive Visual
`History (2014) .............................................................. 6, 7
`
`
`
`
`
`-vi-
`
`
`Christine Haight Farley,
`The Lingering Effects of Copyright’s
`Response to the Invention of Photography,
`65 U. Pitt. L. Rev. 385 (2004) ....................................... 10
`
`Stephen Heyman,
`Photos, Photos Everywhere, New York Times
`(July 29, 2015) ................................................................ 37
`
`Justin Hughes,
`The Photographer’s Copyright—Photograph
`as Art, Photograph As Database, 25 Harv.
`J.L. & Tech. 339 (2012) ............................................. 5, 26
`
`Terry S. Kogan,
`The Enigma of Photography, Depiction, and
`Copyright Originality, 25 Fordham Intell.
`Prop. Media & Ent. L.J. 869 (2015) .......................... 6, 7
`
`Mary Warner Marien,
`Photography and Its Critics: A Cultural History,
`1839-1900 (1997) ............................................................... 6
`
`Edgar Allen Poe,
`The Daguerreotype, Alexander’s Weekly
`Messenger (Jan. 15, 1840) .............................................. 6
`
`Naomi Rosenblum,
`A World History of Photography (4th ed. 2008) ..... 6, 7
`
`Susan Sontag,
`On Photography (1977) ......................................... 5, 6, 11
`
`Eva E. Subotnik,
`Originality Proxies: Toward a Theory of
`Copyright and Creativity, 76 Brook. L. Rev.
`1487 (2011) .................................................................. 5, 37
`
`
`
`
`
`-vii-
`
`
`Rebecca Tushnet,
`Worth A Thousand Words: The Images of
`Copyright, 125 Harv. L. Rev. 683 (2012) .................... 25
`
`William Henry Fox Talbot,
`Some Account of the Art of Photogenic
`Drawing, or the Process by Which Natural
`Objects May Be Made to Delineate Themselves
`Without the Aid of the Artist’s Pencil, Royal
`Soc’y of London (Jan. 31, 1839) ..................................... 6
`
`
`
`
`
`
`
`
`
`
`
`-1-
`
`INTRODUCTION
`The image is iconic. Left arm outstretched, his hand
`gripping a basketball and his legs gracefully splayed,
`Michael Jordan soars upward in sheer defiance of
`gravity, arcing toward a hoop and backboard. There’s no
`basketball court in sight. No teams, no fans, no referees.
`The sport’s greatest player—illuminated by powerful
`spotlights and wearing his famous jersey—will dunk this
`ball alone. The eye is drawn to Jordan by a dark base at
`the bottom of the photo, which contrasts with his flight
`through a gentle sunset. The message is clear: Michael
`Jordan is an indomitable force of basketball whose power
`transcends any surrounding.
`
`
`
`This photograph is perhaps unequaled in its ability to
`express the thrill of witnessing an exceptional athletic
`feat, while also grabbing the attention and fascination of
`the viewer. In 1984, Jacobus Rentmeester conceived,
`directed, and shot this famous photograph of Jordan for
`LIFE Magazine. Among other innovations, Rentmeester
`
`
`
`
`
`-2-
`
`
`created a never-before-used pose—inspired by ballet—to
`generate Jordan’s appearance of weightlessness and
`power. This creative photographic composition has since
`won many awards. Last year, TIME Magazine ranked it
`among the 100 most influential images of all time.
`When Nike later entered into a partnership with
`Jordan and sought a suitably memorable image to anchor
`its new campaign, it chose Rentmeester’s photo. After
`soliciting a transparency of the photo from Rentmeester
`under a license expressly limited to “slide presentation
`only, no layouts or any other duplication,” Nike broke its
`promise. It secretly commissioned its own version of the
`photo, which copies virtually every original element
`expressed in the Rentmeester photo:
`
`
`
`
`
`
`After Rentmeester challenged Nike’s use of his origi-
`nal work, Nike paid him for a license permitting use of its
`derivative image for “2 years” in “North America only.”
`But then Nike again broke its word, and has since used
`the photo in countless commercial settings worldwide.
`Rentmeester later brought this copyright infringe-
`ment action. In the opinion below, a divided panel of the
`
`
`
`
`
`-3-
`
`
`U.S. Court of Appeals for the Ninth Circuit held at the
`pleading stage that the protected elements of the two
`photos are not substantially similar as a matter of law.
`Its decision articulates a novel, restrictive, and deeply
`flawed theory of copyright protection for photographs—
`one that treats photography as a second-class art and
`denigrates photographers’ artistic judgments.
`individual
`According to the Ninth Circuit, the
`elements of a photo are categorically unprotectable
`under copyright law, no matter how much originality
`went into staging the tableau, creating the image, or
`inventing compositional techniques. Like a phonebook,
`photo-graphs are protected only in their selection and
`arrangement of unprotected facts—and are thus entitled
`to markedly thinner protection than any other art form.
`This holding creates a clear split with decisions of the
`First, Second, and Eleventh Circuits. It is in tension with
`decisions by the Third and Tenth Circuits authored by
`then-Judges Alito and Gorsuch. And it evokes a historical
`denial of the artistry
`involved
`in carefully-staged
`photographs that was long ago rejected by this Court.
`The instability it creates in copyright protection will
`foster uncertainty, chill creativity, and reward piracy.
`Only this Court’s intervention can set the law aright.
`OPINIONS BELOW
`The opinion of the Ninth Circuit is reported at 883
`F.3d 1111 (9th Cir. 2018). App. 1a. The Ninth Circuit’s
`order denying rehearing and rehearing en banc is not
`reported. App. 27a. The district court order granting
`Nike’s motion to dismiss is available at No. 3:15-cv-113,
`2015 WL 3766546 (D. Or. June 15, 2015). App. 28a.
`
`
`
`
`
`
`
`-4-
`
`JURISDICTION
`The Ninth Circuit filed its opinion on February 27,
`2018, and denied a petition for rehearing and rehearing
`en banc on July 6, 2018. On October 3, 2018, the Chief
`Justice extended the time for filing a petition for a writ of
`certiorari to and including December 3, 2018. This
`Court’s jurisdiction is invoked under 28 U.S.C. 1254(1).
`CONSTITUTIONAL AND STATUTORY
`PROVISIONS INVOLVED
`Art. I, § 8 of the United States Constitution empow-
`ers Congress “[t]o promote the Progress of Science and
`useful Arts, by securing for limited Times to Authors and
`Inventors, the exclusive Right to their respective
`Writings and Discoveries.”
`17 U.S.C. § 102(a) provides that “Copyright protec-
`tion subsists . . . in original works of authorship fixed in
`any tangible medium of expression, now known or later
`developed, from which they can be perceived, repro-
`duced, or otherwise communicated, either directly or
`with the aid of a machine or device. Works of authorship
`include . . . pictorial, graphic, and sculptural works.”
`17 U.S.C. § 102(b) provides that “in no case does cop-
`yright protection for an original work of authorship
`extend to any idea, procedure, process, system, method
`of operation, concept, principle, or discovery . . .”
`17 U.S.C. § 106(2) provides that “the owner of copy-
`right . . . has the exclusive rights to . . . prepare deriva-
`tive works based upon the copyrighted work.”
`
`
`
`
`
`
`
`-5-
`
`STATEMENT
`I. Protecting photographs under copyright law
`Since photographs first arrived on the scene, jurists
`have debated whether they involve genuine creativity
`and thus merit copyright protection. Even as courts and
`commentators have developed a more refined apprecia-
`tion of the creative judgments essential to photography,
`some judges have persisted in treating it as a second-
`class art form. The decision below, which compared
`photographs to phonebooks, rests upon that pejorative
`view of photography’s capacity for artistry.
`A. The early years of photography
`“Skepticism about the degree of authorship required
`for creating a photograph . . . has existed since the dawn
`of the medium.” Eva E. Subotnik, Originality Proxies:
`Toward a Theory of Copyright and Creativity, 76 Brook.
`L. Rev. 1487, 1507 (2011). Indeed, when photography
`first emerged in the 1830s, many observers maintained
`“that the photographer was not a creator, but an opera-
`tor of a machine: it was the machine’s interaction with
`nature that was the source of the final photographic
`image.” Justin Hughes, The Photographer’s Copyright—
`Photograph as Art, Photograph As Database, 25 Harv.
`J.L. & Tech. 339, 343 (2012).
`On this view, photography is solely a matter of light
`and science. Through mechanical processes and without
`any need for human imagination, it produces an objective
`image of the world. See Susan Sontag, On Photography 4
`(1977) (“Photographed images do not seem to be state-
`ments about the world so much as pieces of it, miniatures
`of reality that anyone can make or acquire.”). Louis
`Daguerre thus described his daguerreotype invention “as
`not merely an instrument which serves to draw Nature,”
`
`
`
`
`
`-6-
`
`
`but as one that “gives her the power to reproduce
`herself.” Id. Similarly, the English inventor William
`Henry Fox Talbot heralded an age in which “nature
`draws itself without the aid of an artist’s pencil.” Some
`Account of the Art of Photogenic Drawing, or the
`Process by Which Natural Objects May Be Made to
`Delineate Themselves Without the Aid of the Artist’s
`Pencil, Royal Soc’y of London (Jan. 31, 1839). On this
`side of the Atlantic, Edgar Allen Poe remarked that the
`new technology offered “truth itself in the supremeness
`its perfection.” The Daguerreotype, Alexander’s
`of
`Weekly Messenger (Jan. 15, 1840).
`The most hostile descriptions of photography often
`came from artists—some of whom felt threatened. When
`Paul Delaroche first saw a daguerreotype in 1839, he is
`said to have cried, “From today painting is dead!” Tom
`Ang, Photography: The Definitive Visual History (2014).
`Many artists disparaged photography’s mechanical
`quality and apparent objectivity. “Unlike a painter whose
`every brushstroke is mediated through her mental vision,
`critics cast a photographer as a mere technician relegat-
`ed to clicking a shutter button.” Terry S. Kogan, The
`Enigma of Photography, Depiction, and Copyright
`Originality, 25 Fordham Intell. Prop. Media & Ent. L.J.
`869, 871–72 (2015).
`John Ruskin thus warned that photography “implied
`the substitution of vulgar verisimilitude for higher
`truths.” Mary Warner Marien, Photography and Its
`Critics: A Cultural History, 1839-1900 3 (1997). Charles
`Baudelaire deemed photography a mere “servant of art
`and science, like printing and stenography,” which failed
`to transcend “external reality.” Naomi Rosenblum, A
`World History of Photography 209 (4th ed. 2008). To the
`
`
`
`
`
`-7-
`
`
`influential French art critic Charles Blanc, “because
`photography copies everything and explains nothing, it is
`blind to the realm of the spirit.” Id. at 210.
`These early attacks on photography’s artistic merit
`reflected broader trends in art and society. The rise of
`impressionism had already sparked debate over the
`importance of realism. See Ang, Photography, at 37.
`Some critics worried that the popularization of photo-
`graphic images would degrade social imagination. See
`Kogan, The Enigma of Photography, at 883. These
`anxieties were occasionally linked to fears regarding the
`commercialization and mass production of art. See
`Rosenblum, A World History of Photography, at 210.
`Even in this era, though, some prescient commenta-
`tors “realized that camera images were or could be as
`significant as handmade works of art.” Id. at 209. The
`writer Louis Figuier observed: “The lens is an instru-
`ment like the pencil and the brush, and photography is a
`process like engraving and drawing, for what makes an
`artist is not the process but the feeling.” Id. at 213.
`By the 1850s, some fine art galleries had begun dis-
`playing photographs—launching a battle over classifica-
`tion that centered on photography’s artistic merits. Over
`the following decades, these debates assumed added
`legal importance with the expansion of commercial
`photography and the rise of photographers who resented
`piracy of their work. See SHL Imaging, Inc. v. Artisan
`House, Inc., 117 F. Supp. 2d 301, 306 (S.D.N.Y. 2000).
`B. The origins of protection for photography
`Against this contested background, it is no surprise
`that “early case law on copyright protection for photo-
`graphs evidenced conflict [over] whether photographs
`
`
`
`
`
`-8-
`
`
`can qualify as works of authorship.” 1 Nimmer on
`Copyright § 2A.08[E][2]. In the view of one federal court,
`“the only force that contributes to the formation of the
`image is the chemical force of light, operating on a
`surface made sensitive to its power.” Wood v. Abbott, 30
`F. Cas. 424, 425 (C.C. S.D.N.Y. 1866) (No. 17,938).
`Congress, however, disagreed. During the final year
`of the Civil War—whose horrors had been movingly
`documented by Matthew Brady—Congress passed the
`Act of March 3, 1865, 38th Cong., 2d Sess., 16 Stat. 198.
`This bill made clear that photographs were copyrighta-
`ble. Id. (“[The Act’s provisions] shall extend to and
`include photographs and the negatives thereof . . .”).
`But that was not the end of the matter. In 1882, Oscar
`Wilde toured America during the production of Gilbert &
`Sullivan’s operetta “Patience,” which satirized Wilde’s
`“aesthetics” movement. Upon his arrival, Wilde sought
`out the famed portraitist Napoleon Sarony for a series of
`publicity photographs. Sarony then registered his images
`with the Copyright Office. Nonetheless, Burrow-Giles, an
`unscrupulous lithography firm, copied one of Sarony’s
`photos and sold over 85,000 prints.
`
`
`
`
`
`
`
`
`-9-
`
`
`
`
`When Sarony sued, Burrow-Giles invoked the Copy-
`right Clause. As Judge Pauley has recounted, it “assert-
`ed that ‘writings’ under the Constitution were limited to
`literary productions and that photographs did not involve
`authorship since they were the result of a mechanical
`process.” SHL Imaging, 117 F. Supp. 2d at 308. In this
`respect, “the contest in the Burrow-Giles case [was]
`representative of the debate that raged over whether
`
`
`
`
`
`-10-
`
`
`photography was an art or a science in the late nine-
`teenth century.” Christine Haight Farley, The Lingering
`Effects of Copyright’s Response to the Invention of
`Photography, 65 U. Pitt. L. Rev. 385, 416 (2004).
`This Court rejected Burrow-Giles’s position. It first
`held that the Constitution does not confine Congress’s
`copyright power to written texts, noting that “maps,
`charts, designs, engravings, etchings, cuts, and other
`prints” had always been protected. Burrow-Giles
`Lithographic Co. v. Sarony, 111 U.S. 53, 57 (1884).
`The Court then rejected Burrow-Giles’s claim that “a
`photograph . . . involves no originality of thought or any
`novelty in the intellectual operation connected with its
`visible reproduction in shape of a picture.” Id. at 59.
`While suggesting that this may be true of certain
`“ordinary” photographs, the Court recognized that
`Sarony’s portrait was an original work of art, the
`“product of plaintiff’s intellectual invention.” Id. at 59–60.
`To support that conclusion, the Court observed that this
`was a “useful, new, harmonious, characteristic, and
`graceful picture.” Id. at 60. Further, creating the
`photograph had involved “posing the said Oscar Wilde in
`front of the camera, selecting and arranging the costume,
`draperies, and other various accessories in said photo-
`graph, arranging the subject so as to present graceful
`outlines, arranging and disposing the light and shade,
`[and] suggesting and evoking the desired expression.” Id.
`Burrow-Giles thus held that where “a photograph
`reflects the photographer’s decisions regarding pose,
`positioning, background, lighting, shading, and the like,
`those elements can be said to ‘owe their origins’ to the
`photographer, making the photograph copyrightable, at
`least to that extent.” Meshwerks, Inc. v. Toyota Motor
`Sales U.S.A., Inc., 528 F.3d 1258, 1264 (10th Cir. 2008)
`
`
`
`
`
`-11-
`
`
`(Gorsuch, J.). In the debate over photography’s status as
`art or science, Burrow-Giles recognized that some
`photos express the highest artistry.
`C. Consensus and conflict since Burrow-Giles
`Since Burrow-Giles, courts have largely agreed on
`the importance of protecting photographs in copyright
`law, even as they have diverged in their understanding of
`what makes photography creative. This difference of
`opinion largely tracks the conflict described above.
`Jurists with a narrow view of copyright protection for
`photography tend to describe it as an inferior art form,
`emphasizing its mechanical nature and depiction of
`external reality. Those with the view expressed in
`Burrow-Giles, in contrast, highlight the range of creative
`judgments available to any photographer—especially
`those who stage the scene they are capturing and employ
`unusual techniques to express it.
`To start with consensus, critics have evolved over the
`past century toward a richer appreciation of photog-
`raphy’s artistic nature. E.g., Sontag, On Photography 7
`(“[P]hotographs are as much an interpretation of the
`world as paintings and drawings are.”). Courts, too, have
`more consistently acknowledged copyright law’s protec-
`tions for photographs. See 2 Patry on Copyright § 3:118.
`Although photographers cannot copyright their underly-
`ing subject matter—nobody is entitled to copyright a
`mountain or human face—courts agree that the original
`judgments that photographers make
`in composing
`images are protectable.
`This understanding of the law rests not only on Bur-
`row-Giles, but also on Justice Holmes’s opinion in
`Bleistein v. Donaldson Lithographing Co., 188 U.S. 239
`(1903). There, this Court affirmed that photographs
`
`
`
`
`
`-12-
`
`
`“drawn from [] life” are protected in their original
`contribution and depiction, since “the opposite proposi-
`tion would mean that a portrait by Velasquez or Whistler
`was common property because others might try their
`hand on the same face.” Id. at 249. Reflecting a capacious
`view of photography’s artistic nature, the Court added
`that a photograph “is the personal reaction of an individ-
`ual upon nature,” and “personality always contains
`something unique.” Id. at 250.
`From this account of photography, many courts have
`drawn the lesson that “no photograph, however simple,
`can be unaffected by the personal influence of the
`author.” Jewelers’ Circular Pub. Co. v. Keystone Pub.
`Co., 274 F. 932, 934 (S.D.N.Y. 1921) (Hand, J.). Put
`differently, courts have recognized that photography
`always involves creative judgments. And because any
`work possessing “at least some minimal degree of
`creativity” will “qualify for copyright protection,” Feist
`Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345
`(1991), photographs fall within copyright’s domain.
`But agreement among courts extends no further than
`this narrow premise. As we describe in greater detail
`below, courts and commentators still struggle to identify
`“a common set of protectable elements” in photographs.
`SHL Imaging, 117 F. Supp. 2d at 310. In many ways, this
`struggle reflects the continuing vitality of a “19th
`century prejudice against the creation of works by
`mechanical means”—a prejudice “rooted in unfounded
`suspicion that photographic equipment restricts creativi-
`ty.” Id.; see also 2 Patry on Copyright § 3:118 (“Protec-
`tion for photographs has been hampered by superficial
`examination of the wide range of creative options
`available to photographers.”).
`
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`II. Factual Background
`If any image is entitled to robust copyright protec-
`tion, it is Rentmeester’s canonical photograph of Michael
`Jordan soaring through the air. That is confirmed by a
`review of Rentmeester’s background, an accounting of
`how he came to stage and create this photograph, and a
`survey of Nike’s interactions with Rentmeester.
`A. Rentmeester’s photographic artistry
`Before he was a photographer, Jacobus Rentmeester
`was an athlete, competing as an oarsman for the King-
`dom of the Netherlands in the 1960 Olympic Games. He
`then moved to the United States, where he was a staff
`photographer for LIFE Magazine from 1966 to 1972, and
`thereafter worked as a freelance photographer. Rent-
`meester created some of the most memorable images of
`the twentieth century. For example, Rentmeester
`covered the Vietnam War (where he was wounded by a
`sniper’s shot to his hand). His 1967 photograph of an
`American tank commander became the first color
`photograph to win the World Press Photo of the Year
`award, photojournalism’s highest honor:
`
`
`
`
`
`
`
`
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`-14-
`
`Rentmeester’s photograph of the hostage crisis at the
`1972 Munich Olympics became the defining image of that
`event:
`
`
`
`
`
`That same year, Rentmeester won first prize in the
`World Press Photo Sports Category for the following
`photograph of Olympic swimmer Mark Spitz:
`
`
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`-15-
`
`
`Rentmeester’s photographs were featured on the
`covers of major magazines at least sixty-seven times. For
`example:
`
`
`Throughout his career, Rentmeester has been especially
`well-known for photographing top athletes in original,
`surprising, and iconic ways—a talent aided by his own
`early accomplishments as an athlete. This year, in
`recognition of his genius for photographing athletes,
`Rentmeester was honored with the prestigious Lucie
`Award for lifetime achievement in sports photography.
`
`
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`-16-
`
`B. Rentmeester staged and created a unique
`portrait of Michael Jordan for LIFE Magazine.
`When the Summer Olympics returned to the United
`States in 1984, LIFE Magazine asked Rentmeester to
`create a portfolio of those who represent our nation’s
`best. This photo essay included a portrait of Jordan, then
`a student at the University of North Carolina.
`The Rentmeester photo is highly staged and mani-
`fests significant creativity and technical skill. Over the
`initial objections of UNC staff, Rentmeester insisted on
`an outdoor location, away from a basketball arena. This
`allowed Rentmeester to depict an
`isolated Jordan
`surrounded by an expanse of clear sky. Rentmeester
`then assiduously eliminated visual distractions—going so
`far as to direct his assistants to borrow a lawnmower to
`cut the grass as low as possible.
`Rentmeester deliberately orchestrated many other
`visual elements. To start, he omitted any indication of
`basketball aside from a hoop, backboard, and pole.
`Rentmeester selected the location for the basketball pole
`and directed his assistants in digging the hole, erecting
`the poll, and assembling the hoop and backboard.
`Having staged the scene in an unusual and original
`manner, Rentmeester posed Jordan
`in a specific,
`artificial way that was
`inspired by Rentmeester’s
`experience one year earlier photographing Mikhail
`Baryshnikov at the American Ballet Theatre. This novel
`pose was a departure for the up-and-coming basketball
`star, and required a creative variance from ballet: Jordan
`could not appear to be performing a standard ballet leap.
`Instead, Rentmeester posed Jordan so as to trick the
`viewer into thinking that Jordan was performing a
`gravity-defying dunk. To that end, Rentmeester asked
`Jordan to jump with his body open and facing the
`
`
`
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`-17-
`
`
`camera, his left leg forward, and his left hand extended
`while holding the perched basketball. The pose was not
`reflective of Jordan’s natural jump. Among other things,
`Jordan normally dunked with his right hand. The
`unusual nature of the pose required Jordan to practice
`several times in response to Rentmeester’s direction.
`Several other creative elements of the Rentmeester
`photo also reflect artistic judgment. First, the photo
`presents a sharp silhouette of Jordan’s full figure against
`a contrasting solid background. Rentmeester achieved
`this effect by using a fast shutter speed synchronized
`with a powerful set of carefully-arranged outdoor strobe
`lights.
`Second, the photo expresses Jordan’s full figure at
`the apex of his vertical leap. Rentmeester was able to
`create this impression by hitting the shutter-release
`button at a precise moment in Jordan’s arc—namely, the
`moment when his limbs were the most outstretched and
`he reached the maximum extent of vertical height.
`Third, the photo maintains a deep depth of field.
`Simply stated, the depth of field in a photograph is the
`distance within the image that appears in focus. A
`photographer varies the depth of field by choosing the
`lens, varying the aperture size (the F-stop number), and
`varying the focal distance. By employing an atypically
`deep depth of field, Rentmeester rendered all visual
`elements in focus, dramatizing Jordan’s dunk.
`Finally, Rentmeester made creative choices in setting
`the scene and distributing visual elements. For example,
`Rentmeester arranged the basketball hoop on the right
`side of the image, with Jordan to the left of it. This was a
`creative, non-obvious decision. Jordan is right-handed
`and typically dunks with his right hand. Thus, the vast
`majority of photographs of Jordan dunking display the
`
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`-18-
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`
`hoop on the left side of the image with Jordan on the
`right. But Rentmeester did the opposite, which permit-
`ted Jordan’s extended left arm to hold up the basketball
`without crossing in front of Jordan’s face.
`Together, these creative judgments reflected artistry
`and original vision. None of them was required by the
`conventions of the genre; indeed, many of them defied it.
`And none of them is necessary to expressing the idea of a
`basketball player soaring through the air to dunk a ball;
`the originality in expressing that familiar idea is why the
`photograph has won so many awards, and it is why Nike
`reached out to Rentmeester to obtain a copy of the film.
`The Rentmeester photo is truly a work of art.
`C. Nike’s Creative Director sees the photo, steals
`its original elements, pays Rentmeester when
`discovered, and then breaks that deal.
`At approximately the same time that LIFE Magazine
`published the Rentmeester photo, Nike and Jordan
`entered into their well-known endorsement relationship.
`Nik
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