Case 3:15-cv-00113-MO Document 50 Filed 06/15/15 Page 1 of 14
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF OREGON
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`PORTLAND DIVISION
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`JACOBUS RENTMEESTER,
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`Plaintiff,
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`v.
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`No. 3:15-cv-00113-MO
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`OPINION AND ORDER
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`NIKE, INC., an Oregon
`corporation,
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`Defendant.
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`MOSMAN, J.,
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`On March 16, 2015, Defendant Nike, Inc. (“Nike”) filed a Motion to Dismiss [25]
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`relating to all of Plaintiff Jacobus Rentmeester’s claims. Mr. Rentmeester’s Complaint [1]
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`alleges claims of copyright infringement, vicarious copyright infringement, and contributory
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`copyright infringement, as well as a violation of the Digital Millennium Copyright Act
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`(“DMCA”). For the reasons discussed below, Nike’s Motion to Dismiss [25] is GRANTED.
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`BACKGROUND
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`As part of a series of photographs for a 1984 issue of LIFE Magazine, Mr. Rentmeester
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`planned and executed a photo shoot with then North Carolina student Michael Jordan.
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`Mr. Rentmeester set out to create a unique and creative picture of Mr. Jordan. Instead of taking a
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`1 – OPINION AND ORDER
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`Case 3:15-cv-00113-MO Document 50 Filed 06/15/15 Page 2 of 14
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`traditional picture of Mr. Jordan in a traditional setting (i.e. a conventional basketball shot in a
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`gym), Mr. Rentmeester photographed Mr. Jordan outdoors in an untraditional pose.
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`Mr. Rentmeester took the photo (“Rentmeester Photo”) on a relatively isolated grassy hill
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`with no visual distractions other than the setting sun and a basketball hoop he had temporarily
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`installed on the hill. For the pose, Mr. Rentmeester instructed Mr. Jordan to jump straight up and
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`perform a grand jeté, a ballet leap, while holding a basketball. Mr. Rentmeester claims he was
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`the first person ever to photograph Mr. Jordan, or any other basketball player, in this specific
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`pose. Mr. Rentmeester believed that a photograph “with Mr. Jordan extending his non-shooting
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`left arm straight and forward, triumphantly holding a basketball (as the tip of a crown holds a
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`jewel), and framing the shot with Mr. Jordan appearing to glide away from the earth and toward
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`a basketball hoop . . . would be powerful, compelling, and unique.” Pl.’s Response [38] at 23.
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`Mr. Rentmeester argues that the creative genius of the pose, and the overall construction of the
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`image, is to trick the viewer into thinking that Mr. Jordan is actually performing a dunk when in
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`fact he is not. In order to accomplish his creative goals, Mr. Rentmeester positioned his camera
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`at an approximate 90-degree angle to the apparent trajectory of Mr. Jordan’s leap and slightly
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`below Mr. Jordan, creating a perspective for the viewer of looking up at Mr. Jordan’s fully-
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`extended body. Mr. Rentmeester captured the precise detail of Mr. Jordan’s jump with a
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`combination of a very rapid shutter speed and powerful synchronized strobe lights.
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`2 – OPINION AND ORDER
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`Case 3:15-cv-00113-MO Document 50 Filed 06/15/15 Page 3 of 14
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`LIFE Magazine published the Rentmeester Photo in a special Olympic preview issue at
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`approximately the same time that Nike was preparing to launch its endorsement relationship with
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`Mr. Jordan. Nike contacted Mr. Rentmeester to request color transparencies of the Rentmeester
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`Photo. Mr. Rentmeester agreed to lend the transparencies to Nike in exchange for $150, with the
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`following strict limitation: “for slide presentation only, no layout or any other duplication.”
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`Compl. [1] at ¶ 32, Ex. A. Within seven months of receiving Mr. Rentmeester’s color
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`transparencies, Nike created a similar photograph (“Nike Photo”) and displayed it on billboards
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`and posters.
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`Upon learning of the Nike Photo, Mr. Rentmeester contacted Nike to discuss its copying
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`of the Rentmeester Photo in breach of the terms of use in the 1984 Jordan Photo Invoice.
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`Mr. Rentmeester and Nike negotiated a limited and temporary use of the Nike Photo. Nike paid
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`Mr. Rentmeester $15,000 for a limited license to use the Nike Photo for a period of two years.
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`After the expiration of the two-year license, Nike continued to use the Nike Photo on a wide
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`variety of billboards, advertisements, and merchandise. Beginning in 1987, Nike began using the
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`Jumpman Logo on all of its Jordan Brand merchandise.
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`3 – OPINION AND ORDER
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`Case 3:15-cv-00113-MO Document 50 Filed 06/15/15 Page 4 of 14
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`DISCUSSION
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`The Proper Legal Standard
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`It is undisputed that in order to state a claim for infringement, Mr. Rentmeester must
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`I.
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`allege (1) ownership of a valid copyright; and (2) unauthorized copying of protectable material.
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`See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991). For unauthorized
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`copying, Mr. Rentmeester must allege facts that demonstrate that Nike had access to his work
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`and that the works at issue are substantially similar. Olson v. Tenney, 466 F. Supp. 2d 1230, 1235
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`(D. Or. 2006) (citing Litchfield v. Spielberg, 736 F.2d 1352 (9th Cir. 1984)). In order to establish
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`substantial similarity in the Ninth Circuit, a plaintiff must demonstrate that the allegedly
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`infringing work is both objectively similar (the “extrinsic test”) and subjectively similar (the
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`“intrinsic test”) to the copyrighted work. Sid & Marty Kroft Tel. Prods., Inc. v. McDonald’s
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`Corp., 562 F.2d 1157, 1164 (9th Cir. 1977) superseded in part on other grounds by 17 U.S.C. §
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`504(b). Whether there is sufficient objective similarity under the extrinsic test is a question that
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`may be decided by the court as a matter of law on a motion to dismiss by viewing the works. See,
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`e.g., Christianson v. West Pub. Co., 149 F.2d 202, 203 (9th Cir. 1945).
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`The most difficult part of this case is determining how similar the works must be to
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`qualify as substantially similar. The Ninth Circuit appears to use a sliding scale to define
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`substantial similarity. In other words, what qualifies as substantially similar varies from case to
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`case depending on the underlying facts. In Mattel, Inc. v. MGA Entertainment, Inc., the Ninth
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`Circuit held:
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`If there’s a wide range of expression (for example, there are gazillions of ways to
`make an aliens-attack movie), the copyright protection is “broad” and a work will
`infringe if it’s “substantially similar” to the copyrighted work. If there’s only a
`narrow range of expression (for example, there are only so many ways to paint a
`red bouncy ball on blank canvas), the copyright protection is “thin” and a work
`must be virtually identical to infringe.
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`4 – OPINION AND ORDER
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`Case 3:15-cv-00113-MO Document 50 Filed 06/15/15 Page 5 of 14
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`616 F.3d 904, 913–14 (9th Cir. 2010). Therefore the key inquiry in this case is to determine
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`whether the Rentmeester Photo involves a wide or narrow range of expression.
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`Nike argues the Ninth Circuit applies the virtually identical, or thin protection, version of
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`the substantial similarity standard in all cases involving photographs. Put in the language found
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`in Mattel, Nike essentially argues that photographs per se only involve a narrow range of
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`expression. The weakness in this position is that Nike fails to explain why this would be true of
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`all photographs (i.e. why photographs necessarily involve only a narrow range of expression).
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`Nike’s counsel could not explain at oral argument why photographs would be treated differently,
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`but nevertheless argued that this is how the Ninth Circuit treats photograph cases and so this
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`court should fall in line and apply the virtually identical standard. In other words, Nike’s counsel
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`urged this court to “Just Do It.”
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`A careful examination of Mattel suggests why the Ninth Circuit has previously applied
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`the virtually identical standard to cases involving photographs. Under Mattel, a court must first
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`determine the breadth of copyright protection over a specific copyrighted work. In order to do
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`this, a court must decide what idea is being expressed by the artist in the copyrighted work.
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`Ideas—even very creative ideas—are not granted copyright protection.17 U.S.C. §102(b); see
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`also Mattel, 616 F.3d at 917. Rather, it is the expression of the idea that is protected. The breadth
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`of protection afforded to a particular expression is determined by the number of possible
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`expressions of the idea. If the idea can only be expressed in a small number of ways, the
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`copyrighted work receives thin protection; only works that are virtually identical will infringe on
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`the artist’s copyright. If the idea can only be expressed in a few ways, it becomes more difficult
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`for artists to express the idea without some overlapping similarities. Only thin protection is
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`afforded to an expression of such an idea to avoid giving the first artist a monopoly over the idea.
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`5 – OPINION AND ORDER
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`Case 3:15-cv-00113-MO Document 50 Filed 06/15/15 Page 6 of 14
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`If the idea is capable of being expressed in a large number of ways, the copyrighted work
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`receives broad protection. Given the numerous alternative dissimilar expressions of the idea,
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`increased protection over a particular expression is more likely to protect creative expression and
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`less likely to result in granting the first artist a monopoly over the idea. Under this broad
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`protection, works that are substantially similar to the copyrighted work will infringe on the
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`artist’s copyright.
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`After determining the breadth of the copyright protection, the court then must compare
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`the similarities in the two works. “The key question always is: Are the works substantially
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`similar beyond the fact that they depict the same idea?” Mattel, 616 F.3d at 917. It is important
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`to recognize that not every similarity is treated the same. “[A] finding of substantial similarity
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`between two works can’t be based on similarities in unprotectable elements.” Id. at 916.
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`Therefore, in applying the extrinsic test and assessing whether the works are objectively similar,
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`courts must consider whether each alleged similarity between the works relates to a protected or
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`unprotected element. Id.; see also Apple Computer, 35 F.3d at 1443. “For example, ideas, scenes
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`a faire (standard features) and unoriginal components aren’t protectable.” Id. at 913. Once the
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`filtering process is complete, what is left is the artist’s particular expression of an idea (i.e. the
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`protectable portion of the work). Id. at 913. The two works are then compared to see if they are
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`substantially similar or virtually identical, depending on the range of expression at issue.
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`Turning to the photograph cases cited by Nike, each of those cases involves a photograph
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`with a limited range of expression. This led the respective courts, some explicitly and others
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`implicitly, to determine there was only a thin range of expression and therefore only virtually
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`identical copies of the copyrighted work would be found to be infringing. Ets-Hokin v. Skyy
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`Spirits, Inc., 323 F.3d 763, 766 (9th Cir. 2003); Muromura v. Rubin Postaer and Assoc., 2014
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`6 – OPINION AND ORDER
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`Case 3:15-cv-00113-MO Document 50 Filed 06/15/15 Page 7 of 14
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`WL 4627099, at *3 (C.D. Cal Sept. 16, 2014); Masterson Mktg., Inc. v. KSL Recreation Corp.,
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`495 F.Supp.2d 1044, 1049 (S.D. Cal 2007); Reece v. Island Treasures Art Gallery, Inc., 468
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`F.Supp.2d 1197, 1205 (D. Haw. 2006). After engaging in the prescribed filtering process, the
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`various courts determined the photographs at issue in each case had very few protectable
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`elements. Ets-Hokin, 323 F.3d at 766; Muromura, 2014 WL 4627099, at *3; Masterson, 495
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`F.Supp.2d at 1049; Reece, 468 F.Supp.2d at 1204–1208. Because the photographs at issue had
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`narrow ranges of expression and lacked protectable similarities, the various courts found that no
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`copyright infringement had occurred. Far from announcing a special rule for photographs, these
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`cases merely apply the standard set out in Mattel.
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`II.
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`Applying the Mattel Test
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`A.
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`Defining the Idea
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`As described above, the first step in applying Mattel is to determine what idea was being
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`expressed in the Rentmeester Photo. At oral argument, counsel for Mr. Rentmeester argued that,
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`“[t]he correct formulation of the idea is one that describes the category of expression and sets out
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`basically the task that Mr. Rentmeester was charged with.” Hearing Transcript [49] at 17. I
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`disagree with this formulation for determining the idea expressed in a work. It should not matter
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`what the commissioner of the work asked for; if that were so, broad copyright protection could
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`be created out of thin air with vague descriptions of the commissioned task. What matters is what
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`idea the creator of the work was trying to express when she created the copyrighted work. I agree
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`with Nike’s position at oral argument that the complaint makes clear that the idea
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`Mr. Rentmeester tried to express in his photograph was that of, “Michael Jordan in a gravity-
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`defying dunk, in a pose inspired by ballet’s grand-jeté.” Id. at 25; see also Pl.’s Compl. [1] at
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`7 – OPINION AND ORDER
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`Case 3:15-cv-00113-MO Document 50 Filed 06/15/15 Page 8 of 14
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`¶20. This is the idea that matters and therefore the one that will be used for the subsequent steps
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`in the Mattel analysis.
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`B.
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`The Range of Expression
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`After defining the idea, the next step in the Mattel analysis is to determine the range of
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`possible ways to express that idea in order to determine the breadth of copyright protection
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`afforded to the Rentmeester Photo. This is a case where there are more than a few ways to
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`express the idea, but certainly less than a gazillion. Mattel, 616 F.3d at 913–14. Counsel for
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`Mr. Rentmeester correctly pointed out that this idea—Michael Jordan in the grand-jeté pose—
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`could have been expressed from a number of different perspectives. The example counsel used
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`was that the photograph could have been taken from behind the basketball hoop facing
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`Mr. Jordan. Hearing Transcript [49] at 36. While this court will not quibble with the fact that
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`there are technically an infinite number of perspectives from which this photograph could have
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`been taken (e.g. from 90 degrees vs. 90.1 vs. 90.2, etc.), there are certainly a handful of
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`materially different perspectives—ten to fifteen—from which this photo could have been taken.
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`The same would apply to the lighting in the photograph; there are an infinite number of
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`possibilities, but only a handful of materially different ones.
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`In Reece, the case cited by Nike most similar to this case, the parties agreed that the idea
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`of a hula dancer in an ’ike pose (traditional hula pose) is only entitled to thin protection. Reece,
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`468 F.Supp.2d at 1205, 1208. The court in that case appears to have accepted that agreement
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`without comment. Presumably though, as discussed above, that idea could be expressed in a
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`number of ways. For example, a photographer could photograph the hula dancer from the front,
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`the back, the side, bird’s eye view, or below. The hula dancer could be 14-years-old or she could
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`be 54-years-old. The picture could be taken at night or during the day. Without any discussion of
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`8 – OPINION AND ORDER
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`Case 3:15-cv-00113-MO Document 50 Filed 06/15/15 Page 9 of 14
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`these various ways to express the idea of a hula dancer in an ’ike pose, the parties agreed, and the
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`court accepted, that the idea was entitled to only thin protection.
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`I am unconvinced by Reece that photographs of ideas involving a specific pose always
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`involve such a narrow range of expression as to merit, categorically, only thin protection. In
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`Mattel the court used two visual cues as examples of the two ends of a continuum: alien-attack
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`movies, for which there is broad protection because there are so many way to express that idea;
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`and a red bouncy ball on a blank canvas, for which there is thin protection because there are far
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`fewer ways to express that idea. I think the idea in this case is closer to the idea of red bouncy
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`ball on a canvas than to the very broad idea of an aliens-attack movie and therefore it receives
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`only thin protection. Mattel, 616 F.3d at 913–14. Although there are a number of variations in
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`perspective and lighting that could be used to photograph Mr. Jordan in the grand-jeté, there are
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`relatively few materially different options. The same could be said for the red bouncy ball on a
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`canvas. The red bouncy ball could be depicted in one of the corners, the dead center of the
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`canvas, or somewhere in between. The ball could be painted very large or very small. It could be
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`painted as if it sat in the dark or under the noon day sun. Despite a few materially different
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`means of expression, according to Mattel, the idea of the red bouncy ball on a canvas has a
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`sufficiently narrow range of expression such that it receives only thin protection. Given the
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`goalposts of a gazillion ways to express an idea resulting in broad protection and a few ways
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`resulting in thin protection, I find the idea expressed in the Rentmeester Photo to have a range of
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`expression substantially closer to the type of idea resulting in only thin protection.
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`9 – OPINION AND ORDER
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`Case 3:15-cv-00113-MO Document 50 Filed 06/15/15 Page 10 of 14
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`C.
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`The Rentmeester Photo vs. The Nike Photo: Comparing the Protected
`Elements for Substantial Similarity
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`1.
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`Filtering Out the Unprotected Elements
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`Having determined the breadth of copyright protection for the Rentmeester Photo, Mattel
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`now requires that I filter out the unprotected elements of the Rentmeester Photo and that I
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`compare the two photographs for substantial similarity. Mattel, 616 F.3d at 913. At oral
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`argument, counsel for Mr. Rentmeester conceded the following as unprotected elements: the
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`basketball hoop, the basketball, a man jumping, Mr. Jordan’s skin color, and his clothing. I
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`believe this list covers all of the material unprotected elements of the Rentmeester Photo.
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`2.
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`Original Selection and Arrangement of Unprotected Elements
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`These concessions came with the disclaimer that Mr. Rentmeester believes his particular
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`arrangement of these various unprotected elements is protected. In Cavalier v. Random House,
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`Inc., the Ninth Circuit held that infringement could be based on “original selection and
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`arrangement of unprotected elements.” 297 F.3d 815, 826 (9th Cir. 2002). So the issue becomes
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`figuring out to what extent Mr. Rentmeester’s selection and arrangement of the above elements
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`can be considered original.
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`I find that very little of the selection and arrangement is original. The idea in the
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`Rentmeester Photo is, “Michael Jordan in a gravity-defying dunk, in a pose inspired by ballet’s
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`grand-jeté.” Given this idea, there is nothing original about the selection and arrangement of
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`having a Michael Jordan jump with a basketball in the vicinity of a basketball hoop—that is all
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`scenes a faire for the idea at issue. The only arguably original part of Mr. Rentmeester’s
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`selection and arrangement is that the photograph was taken outside as opposed to inside a gym.
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`However, given that a lot of basketball is played every day by would-bes, has-beens, and never-
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`weres in driveways and outdoor courts at neighborhood parks, even this element of selection and
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`10 – OPINION AND ORDER
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`Case 3:15-cv-00113-MO Document 50 Filed 06/15/15 Page 11 of 14
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`arrangement is not all that original. Therefore, to the extent Mr. Rentmeester seeks protection for
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`his selection and arrangement of the various unprotected elements, I find that he is either entitled
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`to no protection or such little protection that it has no material impact on the substantial
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`similarity analysis.
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`3.
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`Treatment of the Pose
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`In seeking protection for the pose, counsel for Mr. Rentmeester at various times and in
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`various ways has tried to argue that the pose is protectable because it is a creative and unique
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`pose that Mr. Rentmeester invented. What counsel for Mr. Rentmeester fails to recognize,
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`however, is that whether Mr. Rentmeester’s idea was or was not original has no legal
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`significance. An idea is an unprotected element that is not considered in the substantial similarity
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`analysis. Mattel, 616 F.3d at 917. The law draws no distinction between original and unoriginal
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`ideas; it clearly states, “In no case does copyright protection . . . extend to any idea.” 17 U.S.C.
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`§102(b) (emphasis added).
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`Turning to Mr. Jordan’s actual pose as an expression of the idea to use the grand-jeté, it
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`would be entitled to protection and any substantial similarities between it and Mr. Jordan’s pose
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`in the Nike Photo could result in a finding of infringement. Although at first glance there are
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`certainly similarities between the two expressions of the pose, a closer examination reveals
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`several material differences. In the Rentmeester Photo, Mr. Jordan’s right arm is bent at the
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`elbow. In the Nike Photo, Mr. Jordan’s right arm is extending straight down and away from the
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`basket. With regards to his left arm, in the Rentmeester Photo Mr. Jordan’s arm is bent slightly
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`backwards while in the Nike Photo it is fully extended and is depicted above the basket. The
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`positioning of Mr. Jordan’s legs also appears differently in these photographs. In the
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`Rentmeester Photo, Mr. Jordan’s legs are positioned in the stance of someone jumping while
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`11 – OPINION AND ORDER
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`Case 3:15-cv-00113-MO Document 50 Filed 06/15/15 Page 12 of 14
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`running forward (i.e. a traditional grand- jeté). His legs are apart like a scissor split, nearly
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`creating a straight line. In contrast, in the Nike Photo, Mr. Jordan’s legs are positioned in the
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`stance of someone who has jumped up vertically and spread his legs wide in a straddle position,
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`creating a “V” as opposed to a straight line. In the context of thin or very close to thin copyright
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`protection, these differences lead me to find that the poses are not substantially similar because
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`they are not virtually identical.
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`4.
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`No Substantial Similarity
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`Given the analysis above, I find no substantial similarity between the Rentmeester Photo
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`and the Nike Photo. Once the filtering process is complete, you are left with one of two things:
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`(1) two photographs taken at a similar angle, one of a grassy hill with a blue sky background and
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`a setting sun, and the other of the skyline of Chicago with a red and purple sky background; or
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`(2) everything described in (1) with the addition of Mr. Jordan in a grand- jeté pose in each
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`photograph.
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`If the filtering process results in (1), it is obvious that the two photographs are not
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`substantially similar; in fact it would be a stretch of the imagination to call them similar at all.
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`Other than the similar perspective, there are few if any similarities.
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`If the filtering process results in (2), the analysis would not change because all you have
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`done is add an element to each photograph that, for the reasons stated above, is not substantially
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`similar. The following differences would also come into play if you added in Mr. Jordan as an
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`element to be considered: (1) the scale and placement of Mr. Jordan is different: in the
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`Rentmeester Photo he is relatively small and to the left of the frame and farther from the basket,
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`and in the Nike Photo he is relatively large and in the center of the frame and closer to the
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`basket; and (2) the treatment of the ground: in the Rentmeester Photo you can clearly see the hill
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`12 – OPINION AND ORDER
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`Case 3:15-cv-00113-MO Document 50 Filed 06/15/15 Page 13 of 14
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`where Mr. Jordan jumped from, and in the Nike Photo there is no depiction of where he jumped
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`from, but rather he appears as though he is flying over the skyline of Chicago. Similar to the
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`court in Reece, I believe these many differences are sufficient to overcome the one similarity that
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`Mr. Rentmeester has to hang on to—the fact that the photographers were taken from similar
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`angles. Reece, 468 F.Supp.2d at 1207. Given the lack of substantial similarity between the
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`photographs at issue, Mr. Rentmeester cannot satisfy the objective test for copyright
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`infringement. Mr. Rentmeester’s claims regarding the Nike Photo are therefore dismissed with
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`prejudice.
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`D.
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`The Rentmeester Photo vs. The Jumpman Logo: Comparing the Protected
`Elements for Substantial Similarity
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`For many of the reasons stated above, I find that there is no substantial similarity between
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`the Rentmeester Photo and the Jumpman Logo. The idea embodied is again, “Michael Jordan in
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`a gravity-defying dunk, in a pose inspired by ballet’s grand-jeté.” The only similarity between
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`the Rentmeester Photo and the Jumpman Logo is the pose—the Jumpman Logo is nothing more
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`than an expression of the pose. For the reasons stated above, the two poses are not substantially
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`similar and therefore the two works are not substantially similar. Mr. Rentmeester has shot
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`another brick and failed to meet the objective test for copyright infringement. Mr. Rentmeester’s
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`claims regarding the Jumpman Logo are therefore dismissed with prejudice.
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`III. Application of the DMCA
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`Mr. Rentmeester cannot state a claim under the DMCA without an underlying act of
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`infringement. Section 1202(a) only prohibits the provision of copyright management information
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`that is false. Since the Nike Photo and Jumpman Logo are non-infringing works for the reasons
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`stated above, Nike cannot be faulted for claiming copyright protection over those works.
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`Mr. Rentmeester’s DMCA claim is therefore also dismissed with prejudice.
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`13 – OPINION AND ORDER
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`Case 3:15-cv-00113-MO Document 50 Filed 06/15/15 Page 14 of 14
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`CONCLUSION
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`Based on the briefing and oral argument, Mr. Rentmeester has failed to show that he can
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`satisfy the requisite objective test for copyright infringement. Therefore, Nike’s Motion to
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`Dismiss [25] is GRANTED. Mr. Rentmeester’s Complaint [1] is dismissed with prejudice.
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`IT IS SO ORDERED.
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`DATED this 15th day of June, 2015.
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`/s/ Michael W. Mosman ___
`MICHAEL W. MOSMAN
`United States District Judge
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`14 – OPINION AND ORDER