Three decades later, Rentmeester took Nike to court, filing a copyright infringement suit in federal court in Portland, Ore., where the shoe giant is based. Asked about the reason for the 30-year gap, Dey said his father-in-law wanted to wait until retirement, as his agent and lawyer had advised him at the time that suing Nike might impact his professional career.
When Rentmeester learned that the statute of limitations had not expired in 2014, he reached out to lawyer who was working with Life. (The magazine ceased regular publication in 2000, but has been revived in the years since. It is currently owned by Dotdash Meredith, which plans a relaunch later this year in collaboration with Bedford Media.)
“By that point, he felt he had nothing to lose,” Dey said.
From the beginning, though, Rentmeester knew that winning would be a steep challenge and was disappointed—but not entirely surprised—when the Ninth Circuit judges sided with Nike, pointing to minor differences between his picture and Kuhn’s as evidence for their decision to dismiss the case. (The U.S. Supreme Court similarly wasn’t persuaded when Rentmeester appealed the ruling in 2019.)
“The panel held that Rentmeester plausibly alleged the first element of his copyright claim—that he owned a valid copyright in his photo,” the Ninth Circuit judges noted in their decision. “Rentmeester did not, however, plausibly allege that Nike copied enough of the protected expression from his photo to establish unlawful appropriation.”
In his opinion, Judge Paul J. Watford pointed out the discrepancies he saw between Rentmeester and Kuhn’s photographs, noting the different positions of Jordan’s limbs as well as the placement of the two basketball hoops. “In our view, these differences in selection and arrangement of elements, as reflected in the photos’ objective details, preclude as a matter of law a finding of infringement,” Watford wrote.
But Rentmeester feels the judges’ reading of the law was shortsighted. “It’s easy for them to defend certain things by getting very technical and pointing out that a thumb or a foot is not in the same place in their version as it was in mine,” he explains.
