(Reuters) - Nike Inc (NKE.N) on Tuesday defeated an appeal by a renowned photographer who accused the sportswear company of ripping off his iconic photo of basketball superstar Michael Jordan, and using it to create its silhouetted “Jumpman” logo.
In a 2-1 decision, the 9th U.S. Circuit Court of Appeals said Jacobus Rentmeester did not show that Nike misappropriated his 1984 photo of Jordan, which had been used in a Life magazine feature on that year’s Summer Olympics in Los Angeles.
The Jordan brand now generates $3.1 billion of annual revenue for Nike, which is based in Beaverton, Oregon.
Rentmeester’s photo depicted Jordan, then a student at the University of North Carolina, airborne in a grassy knoll featuring a basketball hoop as a prop, with his left arm extended upward and a basketball in hand.
Several months later, Nike commissioned a similarly posed photo but used Chicago’s skyline as background, because Jordan was then playing for the National Basketball Association’s Chicago Bulls. Nike used that photo to market Air Jordan sneakers, and in 1987 to create the Jumpman logo.
Circuit Judge Paul Watford wrote that while both photos “capture Michael Jordan in a leaping pose inspired by ballet’s grand jeté,” they were not “substantially similar” because of differences in setting, lighting and other elements.
Watford said this meant the logo was also acceptable, and added that Jordan’s pose by itself could not be copyrighted.
“Copyright promotes the progress of science and the useful arts by encouraging others to build freely upon the ideas and information conveyed by a work,” Watford wrote. “That is all Nike’s photographer did here.”
A lawyer for Rentmeester did not immediately respond to requests for comment. Nike had no immediate comment.
Rentmeester, a former Olympic rower from the Netherlands, had sued in January 2015 for copyright infringement damages for the prior three years, avoiding issues with his 30-year delay.
Circuit Judge John Owens dissented from Tuesday’s decision, calling dismissal of the copyright claim premature.
“Whether the Nike photo is substantially similar is not an uncontested breakaway layup,” he wrote.
The decision upheld a June 2015 ruling by now-Chief Judge Michael Mosman of the federal district court in Portland, Oregon.
Jordan, 55, is principal owner of the NBA’s Charlotte Hornets. The Hall of Famer is worth $1.65 billion according to Forbes magazine.
The case is Rentmeester v Nike Inc, 9th U.S. Circuit Court of Appeals, No. 15-35509.
Reporting by Jonathan Stempel in New York; Editing by Tom Brown