WASHINGTON (Reuters) – The U.S. Supreme Court on Monday declined to consider reviving a copyright case in which Nike Inc was accused of unauthorized use of photographer Jacobus Rentmeester’s famous 1984 photograph of basketball superstar Michael Jordan soaring through the air.
The justices turned away an appeal by Rentmeester, a former Life Magazine photographer, of a lower court’s ruling throwing out his copyright infringement lawsuit against the sportswear company. Rentmeester had said the decision against him by the San Francisco-based 9th U.S. Circuit Court of Appeals could stifle creativity and reward piracy.
Rentmeester, a former Olympic rower, photographed Jordan on a grassy knoll at the University of North Carolina for a Life edition on American athletes bound to compete in the 1984 Summer Olympics in Los Angeles.
Jordan appears in a sort of gravity-defying leap, inspired by the grand-jeté pose in ballet, his left hand holding a basketball aloft. Rentmeester thought to capture Jordan that way after photographing Mikhail Baryshnikov at the American Ballet Theatre a year earlier, according to court papers.
Rentmeester accused Nike of commissioning a version of his photo for its commercial benefit, infringing his copyright.
Nike’s version shows Jordan in a similar pose against the backdrop of Chicago’s skyline after he joined the NBA’s Chicago Bulls. Nike used the photo on posters and billboards promoting its lucrative Air Jordan brand.
Rentmeester’s 2015 lawsuit also accused Nike of infringing his copyright by creating its silhouetted “Jumpman” logo, which has become one of its most recognizable trademarks, accounting for billions of dollars in sales.
The 9th Circuit, in dismissing the case last year, ruled that the pose, as well as other elements of the photograph, could not be copyrighted and that Rentmeester did not show that the photo’s details were “substantially similar.”
Urging the Supreme Court to review that decision, Rentmeester’s attorneys said the image is not a cliche shot of a basketball player. Its “expressive elements were meticulously created by Rentmeester, and then meticulously pirated by Nike,” they said in a written brief.
Nike has said that ideas, such as capturing Jordan in a leaping pose, cannot be copyrighted.
Jordan, 56, one of the greatest basketball players of all time, is principal owner of the NBA’s Charlotte Hornets and is worth $1.9 billion, according to Forbes magazine.