Photographer Rentmeester created an iconic photo of basketball player Michael Jordan mid-air making a seemingly gravity-defying dunk. Rentmeester alleged that Nike infringed his copyright in the photograph when it commissioned its own photograph of Jordan and then used that photo to create its “Jumpman” logo.
The Ninth Circuit affirmed the district court’s dismissal of the lawsuit, holding that the two photos were not substantially similar as a matter of law. Specifically, the court held that the pose was not a protectible element, only the way the pose was expressed, including the camera angle, timing, and shutter speed chosen. The two photos were not substantially similar because there were objective differences in selection and arrangement of elements between the two photos.
Rentmeester filed a cert petition seeking Supreme Court review of the Ninth Circuit decision.