IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

JACOBUS RENTMEESTER, 

No. 3:15-cv-00113-MO

Plaintiff, 

OPINION AND ORDER

v. 

NIKE, INC., an Oregon

corporation, 

 Defendant.

MOSMAN, J., 

On March 16, 2015, Defendant Nike, Inc. (“Nike”) filed a Motion to Dismiss [25] 

relating to all of Plaintiff Jacobus Rentmeester’s claims. Mr. Rentmeester’s Complaint [1] 

alleges claims of copyright infringement, vicarious copyright infringement, and contributory 

copyright infringement, as well as a violation of the Digital Millennium Copyright Act 

(“DMCA”). For the reasons discussed below, Nike’s Motion to Dismiss [25] is GRANTED. 

BACKGROUND

As part of a series of photographs for a 1984 issue of LIFE Magazine, Mr. Rentmeester 

planned and executed a photo shoot with then North Carolina student Michael Jordan. 

Mr. Rentmeester set out to create a unique and creative picture of Mr. Jordan. Instead of taking a 

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traditional picture of Mr. Jordan in a traditional setting (i.e. a conventional basketball shot in a 

gym), Mr. Rentmeester photographed Mr. Jordan outdoors in an untraditional pose. 

Mr. Rentmeester took the photo (“Rentmeester Photo”) on a relatively isolated grassy hill 

with no visual distractions other than the setting sun and a basketball hoop he had temporarily 

installed on the hill. For the pose, Mr. Rentmeester instructed Mr. Jordan to jump straight up and 

perform a grand jeté, a ballet leap, while holding a basketball. Mr. Rentmeester claims he was 

the first person ever to photograph Mr. Jordan, or any other basketball player, in this specific 

pose. Mr. Rentmeester believed that a photograph “with Mr. Jordan extending his non-shooting 

left arm straight and forward, triumphantly holding a basketball (as the tip of a crown holds a 

jewel), and framing the shot with Mr. Jordan appearing to glide away from the earth and toward 

a basketball hoop . . . would be powerful, compelling, and unique.” Pl.’s Response [38] at 23. 

Mr. Rentmeester argues that the creative genius of the pose, and the overall construction of the 

image, is to trick the viewer into thinking that Mr. Jordan is actually performing a dunk when in 

fact he is not. In order to accomplish his creative goals, Mr. Rentmeester positioned his camera 

at an approximate 90-degree angle to the apparent trajectory of Mr. Jordan’s leap and slightly 

below Mr. Jordan, creating a perspective for the viewer of looking up at Mr. Jordan’s fullyextended body. Mr. Rentmeester captured the precise detail of Mr. Jordan’s jump with a 

combination of a very rapid shutter speed and powerful synchronized strobe lights. 

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LIFE Magazine published the Rentmeester Photo in a special Olympic preview issue at 

approximately the same time that Nike was preparing to launch its endorsement relationship with 

Mr. Jordan. Nike contacted Mr. Rentmeester to request color transparencies of the Rentmeester 

Photo. Mr. Rentmeester agreed to lend the transparencies to Nike in exchange for $150, with the 

following strict limitation: “for slide presentation only, no layout or any other duplication.” 

Compl. [1] at ¶ 32, Ex. A. Within seven months of receiving Mr. Rentmeester’s color 

transparencies, Nike created a similar photograph (“Nike Photo”) and displayed it on billboards 

and posters. 

Upon learning of the Nike Photo, Mr. Rentmeester contacted Nike to discuss its copying 

of the Rentmeester Photo in breach of the terms of use in the 1984 Jordan Photo Invoice. 

Mr. Rentmeester and Nike negotiated a limited and temporary use of the Nike Photo. Nike paid 

Mr. Rentmeester $15,000 for a limited license to use the Nike Photo for a period of two years. 

After the expiration of the two-year license, Nike continued to use the Nike Photo on a wide 

variety of billboards, advertisements, and merchandise. Beginning in 1987, Nike began using the 

Jumpman Logo on all of its Jordan Brand merchandise. 

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DISCUSSION

I. The Proper Legal Standard

It is undisputed that in order to state a claim for infringement, Mr. Rentmeester must 

allege (1) ownership of a valid copyright; and (2) unauthorized copying of protectable material. 

See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991). For unauthorized 

copying, Mr. Rentmeester must allege facts that demonstrate that Nike had access to his work 

and that the works at issue are substantially similar. Olson v. Tenney, 466 F. Supp. 2d 1230, 1235 

(D. Or. 2006) (citing Litchfield v. Spielberg, 736 F.2d 1352 (9th Cir. 1984)). In order to establish 

substantial similarity in the Ninth Circuit, a plaintiff must demonstrate that the allegedly 

infringing work is both objectively similar (the “extrinsic test”) and subjectively similar (the 

“intrinsic test”) to the copyrighted work. Sid & Marty Kroft Tel. Prods., Inc. v. McDonald’s 

Corp., 562 F.2d 1157, 1164 (9th Cir. 1977) superseded in part on other grounds by 17 U.S.C. § 

504(b). Whether there is sufficient objective similarity under the extrinsic test is a question that 

may be decided by the court as a matter of law on a motion to dismiss by viewing the works. See, 

e.g., Christianson v. West Pub. Co., 149 F.2d 202, 203 (9th Cir. 1945). 

The most difficult part of this case is determining how similar the works must be to 

qualify as substantially similar. The Ninth Circuit appears to use a sliding scale to define 

substantial similarity. In other words, what qualifies as substantially similar varies from case to 

case depending on the underlying facts. In Mattel, Inc. v. MGA Entertainment, Inc., the Ninth 

Circuit held:

If there’s a wide range of expression (for example, there are gazillions of ways to 

make an aliens-attack movie), the copyright protection is “broad” and a work will 

infringe if it’s “substantially similar” to the copyrighted work. If there’s only a 

narrow range of expression (for example, there are only so many ways to paint a 

red bouncy ball on blank canvas), the copyright protection is “thin” and a work 

must be virtually identical to infringe.

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616 F.3d 904, 913–14 (9th Cir. 2010). Therefore the key inquiry in this case is to determine 

whether the Rentmeester Photo involves a wide or narrow range of expression. 

Nike argues the Ninth Circuit applies the virtually identical, or thin protection, version of 

the substantial similarity standard in all cases involving photographs. Put in the language found 

in Mattel, Nike essentially argues that photographs per se only involve a narrow range of 

expression. The weakness in this position is that Nike fails to explain why this would be true of 

all photographs (i.e. why photographs necessarily involve only a narrow range of expression). 

Nike’s counsel could not explain at oral argument why photographs would be treated differently, 

but nevertheless argued that this is how the Ninth Circuit treats photograph cases and so this 

court should fall in line and apply the virtually identical standard. In other words, Nike’s counsel 

urged this court to “Just Do It.” 

A careful examination of Mattel suggests why the Ninth Circuit has previously applied 

the virtually identical standard to cases involving photographs. Under Mattel, a court must first 

determine the breadth of copyright protection over a specific copyrighted work. In order to do 

this, a court must decide what idea is being expressed by the artist in the copyrighted work. 

Ideas—even very creative ideas—are not granted copyright protection.17 U.S.C. §102(b); see 

also Mattel, 616 F.3d at 917. Rather, it is the expression of the idea that is protected. The breadth 

of protection afforded to a particular expression is determined by the number of possible 

expressions of the idea. If the idea can only be expressed in a small number of ways, the 

copyrighted work receives thin protection; only works that are virtually identical will infringe on 

the artist’s copyright. If the idea can only be expressed in a few ways, it becomes more difficult 

for artists to express the idea without some overlapping similarities. Only thin protection is 

afforded to an expression of such an idea to avoid giving the first artist a monopoly over the idea. 

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If the idea is capable of being expressed in a large number of ways, the copyrighted work 

receives broad protection. Given the numerous alternative dissimilar expressions of the idea, 

increased protection over a particular expression is more likely to protect creative expression and 

less likely to result in granting the first artist a monopoly over the idea. Under this broad 

protection, works that are substantially similar to the copyrighted work will infringe on the 

artist’s copyright.

 After determining the breadth of the copyright protection, the court then must compare 

the similarities in the two works. “The key question always is: Are the works substantially 

similar beyond the fact that they depict the same idea?” Mattel, 616 F.3d at 917. It is important 

to recognize that not every similarity is treated the same. “[A] finding of substantial similarity 

between two works can’t be based on similarities in unprotectable elements.” Id. at 916. 

Therefore, in applying the extrinsic test and assessing whether the works are objectively similar, 

courts must consider whether each alleged similarity between the works relates to a protected or 

unprotected element. Id.; see also Apple Computer, 35 F.3d at 1443. “For example, ideas, scenes 

a faire (standard features) and unoriginal components aren’t protectable.” Id. at 913. Once the 

filtering process is complete, what is left is the artist’s particular expression of an idea (i.e. the 

protectable portion of the work). Id. at 913. The two works are then compared to see if they are 

substantially similar or virtually identical, depending on the range of expression at issue. 

 Turning to the photograph cases cited by Nike, each of those cases involves a photograph 

with a limited range of expression. This led the respective courts, some explicitly and others 

implicitly, to determine there was only a thin range of expression and therefore only virtually 

identical copies of the copyrighted work would be found to be infringing. Ets-Hokin v. Skyy 

Spirits, Inc., 323 F.3d 763, 766 (9th Cir. 2003); Muromura v. Rubin Postaer and Assoc., 2014 

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WL 4627099, at *3 (C.D. Cal Sept. 16, 2014); Masterson Mktg., Inc. v. KSL Recreation Corp., 

495 F.Supp.2d 1044, 1049 (S.D. Cal 2007); Reece v. Island Treasures Art Gallery, Inc., 468 

F.Supp.2d 1197, 1205 (D. Haw. 2006). After engaging in the prescribed filtering process, the 

various courts determined the photographs at issue in each case had very few protectable 

elements. Ets-Hokin, 323 F.3d at 766; Muromura, 2014 WL 4627099, at *3; Masterson, 495 

F.Supp.2d at 1049; Reece, 468 F.Supp.2d at 1204–1208. Because the photographs at issue had 

narrow ranges of expression and lacked protectable similarities, the various courts found that no 

copyright infringement had occurred. Far from announcing a special rule for photographs, these 

cases merely apply the standard set out in Mattel. 

II. Applying the Mattel Test

A. Defining the Idea

As described above, the first step in applying Mattel is to determine what idea was being 

expressed in the Rentmeester Photo. At oral argument, counsel for Mr. Rentmeester argued that, 

“[t]he correct formulation of the idea is one that describes the category of expression and sets out 

basically the task that Mr. Rentmeester was charged with.” Hearing Transcript [49] at 17. I 

disagree with this formulation for determining the idea expressed in a work. It should not matter 

what the commissioner of the work asked for; if that were so, broad copyright protection could 

be created out of thin air with vague descriptions of the commissioned task. What matters is what 

idea the creator of the work was trying to express when she created the copyrighted work. I agree 

with Nike’s position at oral argument that the complaint makes clear that the idea 

Mr. Rentmeester tried to express in his photograph was that of, “Michael Jordan in a gravitydefying dunk, in a pose inspired by ballet’s grand-jeté.” Id. at 25; see also Pl.’s Compl. [1] at 

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¶20. This is the idea that matters and therefore the one that will be used for the subsequent steps 

in the Mattel analysis.

B. The Range of Expression

 After defining the idea, the next step in the Mattel analysis is to determine the range of 

possible ways to express that idea in order to determine the breadth of copyright protection 

afforded to the Rentmeester Photo. This is a case where there are more than a few ways to 

express the idea, but certainly less than a gazillion. Mattel, 616 F.3d at 913–14. Counsel for 

Mr. Rentmeester correctly pointed out that this idea—Michael Jordan in the grand-jeté pose—

could have been expressed from a number of different perspectives. The example counsel used 

was that the photograph could have been taken from behind the basketball hoop facing 

Mr. Jordan. Hearing Transcript [49] at 36. While this court will not quibble with the fact that 

there are technically an infinite number of perspectives from which this photograph could have 

been taken (e.g. from 90 degrees vs. 90.1 vs. 90.2, etc.), there are certainly a handful of 

materially different perspectives—ten to fifteen—from which this photo could have been taken. 

The same would apply to the lighting in the photograph; there are an infinite number of 

possibilities, but only a handful of materially different ones. 

In Reece, the case cited by Nike most similar to this case, the parties agreed that the idea 

of a hula dancer in an ’ike pose (traditional hula pose) is only entitled to thin protection. Reece, 

468 F.Supp.2d at 1205, 1208. The court in that case appears to have accepted that agreement 

without comment. Presumably though, as discussed above, that idea could be expressed in a 

number of ways. For example, a photographer could photograph the hula dancer from the front, 

the back, the side, bird’s eye view, or below. The hula dancer could be 14-years-old or she could 

be 54-years-old. The picture could be taken at night or during the day. Without any discussion of 

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these various ways to express the idea of a hula dancer in an ’ike pose, the parties agreed, and the 

court accepted, that the idea was entitled to only thin protection. 

 I am unconvinced by Reece that photographs of ideas involving a specific pose always

involve such a narrow range of expression as to merit, categorically, only thin protection. In 

Mattel the court used two visual cues as examples of the two ends of a continuum: alien-attack 

movies, for which there is broad protection because there are so many way to express that idea; 

and a red bouncy ball on a blank canvas, for which there is thin protection because there are far 

fewer ways to express that idea. I think the idea in this case is closer to the idea of red bouncy 

ball on a canvas than to the very broad idea of an aliens-attack movie and therefore it receives 

only thin protection. Mattel, 616 F.3d at 913–14. Although there are a number of variations in 

perspective and lighting that could be used to photograph Mr. Jordan in the grand-jeté, there are

relatively few materially different options. The same could be said for the red bouncy ball on a 

canvas. The red bouncy ball could be depicted in one of the corners, the dead center of the 

canvas, or somewhere in between. The ball could be painted very large or very small. It could be 

painted as if it sat in the dark or under the noon day sun. Despite a few materially different 

means of expression, according to Mattel, the idea of the red bouncy ball on a canvas has a 

sufficiently narrow range of expression such that it receives only thin protection. Given the 

goalposts of a gazillion ways to express an idea resulting in broad protection and a few ways 

resulting in thin protection, I find the idea expressed in the Rentmeester Photo to have a range of 

expression substantially closer to the type of idea resulting in only thin protection. 

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C. The Rentmeester Photo vs. The Nike Photo: Comparing the Protected 

Elements for Substantial Similarity

 1. Filtering Out the Unprotected Elements

 Having determined the breadth of copyright protection for the Rentmeester Photo, Mattel 

now requires that I filter out the unprotected elements of the Rentmeester Photo and that I 

compare the two photographs for substantial similarity. Mattel, 616 F.3d at 913. At oral 

argument, counsel for Mr. Rentmeester conceded the following as unprotected elements: the 

basketball hoop, the basketball, a man jumping, Mr. Jordan’s skin color, and his clothing. I 

believe this list covers all of the material unprotected elements of the Rentmeester Photo.

 2. Original Selection and Arrangement of Unprotected Elements

These concessions came with the disclaimer that Mr. Rentmeester believes his particular 

arrangement of these various unprotected elements is protected. In Cavalier v. Random House, 

Inc., the Ninth Circuit held that infringement could be based on “original selection and 

arrangement of unprotected elements.” 297 F.3d 815, 826 (9th Cir. 2002). So the issue becomes 

figuring out to what extent Mr. Rentmeester’s selection and arrangement of the above elements 

can be considered original. 

I find that very little of the selection and arrangement is original. The idea in the 

Rentmeester Photo is, “Michael Jordan in a gravity-defying dunk, in a pose inspired by ballet’s 

grand-jeté.” Given this idea, there is nothing original about the selection and arrangement of 

having a Michael Jordan jump with a basketball in the vicinity of a basketball hoop—that is all 

scenes a faire for the idea at issue. The only arguably original part of Mr. Rentmeester’s 

selection and arrangement is that the photograph was taken outside as opposed to inside a gym. 

However, given that a lot of basketball is played every day by would-bes, has-beens, and neverweres in driveways and outdoor courts at neighborhood parks, even this element of selection and 

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arrangement is not all that original. Therefore, to the extent Mr. Rentmeester seeks protection for 

his selection and arrangement of the various unprotected elements, I find that he is either entitled 

to no protection or such little protection that it has no material impact on the substantial 

similarity analysis.

 3. Treatment of the Pose

 In seeking protection for the pose, counsel for Mr. Rentmeester at various times and in 

various ways has tried to argue that the pose is protectable because it is a creative and unique 

pose that Mr. Rentmeester invented. What counsel for Mr. Rentmeester fails to recognize, 

however, is that whether Mr. Rentmeester’s idea was or was not original has no legal 

significance. An idea is an unprotected element that is not considered in the substantial similarity 

analysis. Mattel, 616 F.3d at 917. The law draws no distinction between original and unoriginal 

ideas; it clearly states, “In no case does copyright protection . . . extend to any idea.” 17 U.S.C. 

§102(b) (emphasis added). 

 Turning to Mr. Jordan’s actual pose as an expression of the idea to use the grand-jeté, it 

would be entitled to protection and any substantial similarities between it and Mr. Jordan’s pose 

in the Nike Photo could result in a finding of infringement. Although at first glance there are 

certainly similarities between the two expressions of the pose, a closer examination reveals

several material differences. In the Rentmeester Photo, Mr. Jordan’s right arm is bent at the 

elbow. In the Nike Photo, Mr. Jordan’s right arm is extending straight down and away from the 

basket. With regards to his left arm, in the Rentmeester Photo Mr. Jordan’s arm is bent slightly 

backwards while in the Nike Photo it is fully extended and is depicted above the basket. The 

positioning of Mr. Jordan’s legs also appears differently in these photographs. In the 

Rentmeester Photo, Mr. Jordan’s legs are positioned in the stance of someone jumping while 

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running forward (i.e. a traditional grand- jeté). His legs are apart like a scissor split, nearly 

creating a straight line. In contrast, in the Nike Photo, Mr. Jordan’s legs are positioned in the 

stance of someone who has jumped up vertically and spread his legs wide in a straddle position, 

creating a “V” as opposed to a straight line. In the context of thin or very close to thin copyright 

protection, these differences lead me to find that the poses are not substantially similar because 

they are not virtually identical. 

 4. No Substantial Similarity

 Given the analysis above, I find no substantial similarity between the Rentmeester Photo 

and the Nike Photo. Once the filtering process is complete, you are left with one of two things: 

(1) two photographs taken at a similar angle, one of a grassy hill with a blue sky background and 

a setting sun, and the other of the skyline of Chicago with a red and purple sky background; or 

(2) everything described in (1) with the addition of Mr. Jordan in a grand- jeté pose in each 

photograph. 

 If the filtering process results in (1), it is obvious that the two photographs are not 

substantially similar; in fact it would be a stretch of the imagination to call them similar at all. 

Other than the similar perspective, there are few if any similarities. 

 If the filtering process results in (2), the analysis would not change because all you have 

done is add an element to each photograph that, for the reasons stated above, is not substantially 

similar. The following differences would also come into play if you added in Mr. Jordan as an 

element to be considered: (1) the scale and placement of Mr. Jordan is different: in the 

Rentmeester Photo he is relatively small and to the left of the frame and farther from the basket, 

and in the Nike Photo he is relatively large and in the center of the frame and closer to the 

basket; and (2) the treatment of the ground: in the Rentmeester Photo you can clearly see the hill 

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where Mr. Jordan jumped from, and in the Nike Photo there is no depiction of where he jumped 

from, but rather he appears as though he is flying over the skyline of Chicago. Similar to the 

court in Reece, I believe these many differences are sufficient to overcome the one similarity that 

Mr. Rentmeester has to hang on to—the fact that the photographers were taken from similar 

angles. Reece, 468 F.Supp.2d at 1207. Given the lack of substantial similarity between the 

photographs at issue, Mr. Rentmeester cannot satisfy the objective test for copyright 

infringement. Mr. Rentmeester’s claims regarding the Nike Photo are therefore dismissed with 

prejudice.

D. The Rentmeester Photo vs. The Jumpman Logo: Comparing the Protected 

Elements for Substantial Similarity

 For many of the reasons stated above, I find that there is no substantial similarity between 

the Rentmeester Photo and the Jumpman Logo. The idea embodied is again, “Michael Jordan in 

a gravity-defying dunk, in a pose inspired by ballet’s grand-jeté.” The only similarity between 

the Rentmeester Photo and the Jumpman Logo is the pose—the Jumpman Logo is nothing more 

than an expression of the pose. For the reasons stated above, the two poses are not substantially 

similar and therefore the two works are not substantially similar. Mr. Rentmeester has shot 

another brick and failed to meet the objective test for copyright infringement. Mr. Rentmeester’s 

claims regarding the Jumpman Logo are therefore dismissed with prejudice. 

III. Application of the DMCA

Mr. Rentmeester cannot state a claim under the DMCA without an underlying act of 

infringement. Section 1202(a) only prohibits the provision of copyright management information 

that is false. Since the Nike Photo and Jumpman Logo are non-infringing works for the reasons 

stated above, Nike cannot be faulted for claiming copyright protection over those works. 

Mr. Rentmeester’s DMCA claim is therefore also dismissed with prejudice.

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CONCLUSION

Based on the briefing and oral argument, Mr. Rentmeester has failed to show that he can 

satisfy the requisite objective test for copyright infringement. Therefore, Nike’s Motion to 

Dismiss [25] is GRANTED. Mr. Rentmeester’s Complaint [1] is dismissed with prejudice. 

IT IS SO ORDERED.

DATED this 15th day of June, 2015. 

/s/ Michael W. Mosman ___ 

MICHAEL W. MOSMAN

United States District Judge

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