(CN) – The U.S. Supreme Court declined to intervene in a copyright dispute involving a 1984 photo of Michael Jordan dunking a basketball in which the photographer claimed Nike ripped him off with its famous “Jumpman” logo.
At issue are an alleged reproduction of the photo, and the silhouetted “Jumpman” logo used in Nike advertising.
Photojournalist Jacobus Rentmeester sued Nike in 2015, claiming the company infringed his copyright of photo he took of Jordan, then a student at the University of North Carolina, for a Life Magazine feature on the 1984 Summer Olympics.
A federal judge in Oregon granted Nike’s motion to dismiss the action, and Rentmeester appealed to the Ninth Circuit.
According to court filings, the photographer arranged his photo in a way that would “trick the viewer into thinking that Mr. Jordan was performing a gravity-defying dunk.”
“Creative expression does not become unprotectable if the artist plans it in advance, or if the artist succeeds in expressing what she tries to express. This is absurd,” the brief states.
Last year, the Ninth Circuit panel concluded the pose itself is not entitled to copyright protection.
While it is possible that Nike copied Rentmeester’s photo, the panel found that the photographer could only claim copyright on creative choices like lighting and camera angle.
“If a subsequent photographer persuaded Michael Jordan to assume the exact same pose but took her photo, say, from a bird’s eye view directly above him, the resulting image would bear little resemblance to Rentmeester’s photo and thus could not be deemed infringing,” U.S. Circuit Judge Paul Watford wrote for the panel.
Rentmeester petitioned the Supreme Court for a writ of certiorari, which the court denied without further comment Monday.