via The Oregonian

by Brendan Dunne

The federal lawsuit involving Nike and Jordan Brand's Jumpman logo continued last week with some particularly bizarre references in court.

In one of a handful of amusing back and forths reported by The Oregonian, U.S. District Judge Michael W. Mosman wondered if the pose in the image was protected under copyright law. This is relevant as the photographer of the image above, Jacobus Rentmeester, filed the legal complaint in response to the similarities between the silhouette of his original image of Michael Jordan and the one that would go on to become the Jumpman logo. The judge questioned Rentmeester's attorney Dean M. Harvey on whether things would be the same had someone recreated the photo using a different athlete.

Judge Mosman: Let me ask it this way, then. So you mean that the exact photograph of the pose is what's copyrightable? Someone could come up with the same pose, and if it's a different person, for example, entirely, not Michael Jordan, but — who is the next best —
Court clerk: LeBron.
Judge Mosman: We'll do LeBron James just to humor my law clerk, who is 50 pounds heavier.
If you had a different person in the identical pose, then the pose itself is not anything for which you can seek copyright protection; is that right? 
Harvey: I think that's right, Your Honor.

 Harvey maintained that Rentmeester's original photograph was distinctive and features a pose that Michael Jordan would not have naturally made.

Harvey: This is Michael Jordan doing a pose that he had never done before that was the invention of Mr. Rentmeester and that is not a natural result of any kind of movement that would be typical in a basketball game or typically Michael Jordan.
And how do we know that? One, in this photograph, Michael Jordan is holding the basketball in his left hand. That is his non-shooting hand.
Judge Mosman: More importantly, why does that matter?
Harvey: Why that matters is I'm anticipating argument from Nike, the two defenses to copy infringement of scenes a faire and merger, (principles of copyright law) where if you have a basic idea, suppose my idea is that I own a photograph of a hula dancer doing a hula pose. If that pose is a natural result of a basic idea, then the copyright protection may be limited...

Nike attorney Dale M. Cendali contends that there are many differences between Rentmeester's original photograph and the one that Nike used for the Jumpman logo.

Cendali: The pose is different. The arm, the left arm is different, the right arm is different. In light of the fact that the human body is constrained in a certain way, when you're dunking a basketball impressively, you're probably going to use one hand. You're not likely – it's not soccer. You're not going to use your foot. You're not likely to use your head.

Read more on the Nike lawsuit over its infamous Jumpman logo via The Oregonian.