A Picture’s Worth a Thousand Words… and a Few Billion Dollars

02/02/2015 | Business Litigation

Nike made over $3.4 billion in revenue from its “Air Jordan” brand in 2014, and now Dutch-American photographer Jacobus Rentmeester is suing for a piece of Nike’s multi-billion dollar pie.  The suit concerns a photograph Rentmeester took of Michael Jordan before the 1984 Olympic Games in Los Angeles which, as you can see below, looks awfully similar to Nike’s Air Jordan logo, which was first used in 1987.

Rentmeester threated to sue Nike as far back as 1985 when Nike used a silhouette of Rentmeester’s photograph on billboards across North America.  Nike eventually paid $15,000 for the rights to use the image in its billboards; however, in 1987, Nike rolled out its Air Jordan brand and continued to use an image similar to Rentmeester’s photograph.  Rentmeester claims he never approved his image to be used for that purpose.

Rentmeester claims the photograph he took of Jordan was staged, noting the pose and technique in the photograph is nothing like how Jordan would typically dunk a basketball.  His suit states “the pose, while conceived to make it appear that Mr. Jordan was in the process of a dunk, was not reflective of Mr. Jordan's natural jump or dunking style.”

The big question in all of this is how is it possible—after over 28 years—for Rentmeester to now bring a trademark infringement lawsuit?  Federal copyright law allows a only three years to bring a lawsuit for infringement; however, the U.S. Supreme Court recently held in Pertella v. MGMthat a continuing infringement pushes the statute’s running back.  Because Nike allegedly infringed Rentmeester’s photograph for the past 28 years, the three year statute has not begun to run. 

28 years and billions of dollars later, the millisecond-long flash of Rentmeester’s camera may earn him a lifetime’s fortune 

 

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