Nike and The Beatles - Tips for Dealing with Copyright Works
Two recent cases in the USA and the UK have brought copyright into the limelight. The issues considered in the cases are not particularly novel. However, the notoriety of the brands involved (Nike and the Beatles) has generated a lot of publicity. Looking past this publicity and the big brands, some tips can be taken from the cases for users, or would be users, of copyright material.
Rentmeester v Nike
I am sure most of us are familiar with the "jumpman" logo used by Nike to promote its Michael Jordan merchandise. The "jumpman" logo is a silhouette of Michael Jordan dunking a basketball in a hoop.
Well, Nike recently had to fight off claims that its use of that image infringed copyright in a photograph taken by Jacobus Rentmeester back in 1984. In 1984, Rentmeester took a series of photographs of Michael Jordan to be published in a magazine. As part of this photo-shoot, Rentmeester captured Michael Jordan jumping in the air and performing a ballet-style leap while holding a basketball and heading for the hoop for a dunk. This photograph was published in a 1984 publication of the LIFE Magazine.
This happened to be around the time Nike was set to launch its endorsement relationship with Michael Jordan. Nike saw the published photograph and contacted Rentmeester requesting copies of the photograph. Nike paid Rentmeester $150 to use the photograph “for slide presentation only, no layout or other duplication”.
Shortly after, Nike created a similar photograph. When Rentmeester found out what Nike had done, Rentmeester contacted Nike and accused it of copying his photograph in breach of the terms of the licence he granted to Nike to use his photograph. They then agreed to an additional licence where Nike was allowed to use the photograph for a period of two years, in exchange for $15,000.
After that licence expired, Nike continued to use the photograph. Then, in 1987, Nike created its, now distinctive, “jumpman” logo. Nike has used this logo extensively since 1987.
Earlier this year, Rentmeester sued Nike claiming that the “jumpman” logo infringed his copyright in the photograph he had taken of Michael Jordan in 1984. Nike filed a motion to dismiss Rentmeester’s claims.
In short, Rentmeester’s claims were dismissed. Judge Mosman found that:
Because there were only a handful of perspectives from which Rentmeester’s photograph could be taken, he had only “thin” copyright protection.This meant that infringement would only occur if Nike’s work was “virtually identical” to Rentmeester’s photograph.
The only similarity between Nike’s “jumpman” logo and Rentmeester’s photograph was the type of pose Michael Jordan was striking.Even then, there were noticeable differences in the poses: the position of Michael Jordan’s left arm was different in each photo and the position of his legs was also different in each photo.
There were significant differences between Nike’s photograph underlying Nike’s “jumpman” logo and Rentmeester’s photograph: Nike’s photo featured the Chicago skyline with a red and purple sky and Rentmeester’s photograph featured a grass hill, blue sky and a setting sun (and the basketball hoop, the basketball, a man jumping, Jordan’s skin colour and his clothing were all accepted to be unprotected elements of Rentmeester’s photograph).
The similarities were not sufficient to find infringement, and Rentmeester’s claims were dismissed.
Sony/ATV Music Publishing v WPMC
On 11 February 1964, the Beatles performed at the Colisieum in the USA. (I wasn’t around to see it, sadly.) There were 12 songs performed at that concert and Sony/ATV own the copyright in 8 of those songs.
The concert was videoed. In 2009, one of the defendants in this case, lambic, acquired a copy of the master videotape to make a documentary of the concert. The rights to the videotape were later transferred to WPMC.
During 2009 and 2010, lambic tried to get a licence from Sony/ATV and other relevant rights holders to reproduce and exploit the video as part of the soundtrack to the proposed documentary. However, a licence was not agreed upon.
Sony/ATV later discovered that the documentary proposed by lambic (and upon which the licence negotiations were based) was being promoted, by WPMC. Sony/ATV sued in both the UK and the USA.
Sony/ATV recently succeeded in the UK. Justice Arnold found that WPMC’s use of the video as part of its documentary did not constitute “fair use” and, in turn, that it infringed Sony/ATV’s copyright in the video.
Essentially, Justice Arnold found that the amount copied was excessive. He said “If the [d]ocumentary had merely used a number of excerpts from the [c]oncert [v]ideo, and hence of the [c]opyright [w]orks, then that might well have been reasonable having regard to the transformative purpose. As it is, however, the [d]ocumentary goes well beyond that… [W]hat WPMC are representing amounts to a package of the [c]oncert [v]ideo with additional material. Furthermore, there is substantial additional use of the [c]opyright [w]orks as part of the soundtrack. Not only does the usage exceed what is necessary to illustrate the nature and effect of the Beatles’ performances of the [c]opyright [w]orks, it exceeds what is reasonable for that purpose”.
Tips for Dealing with Copyright Works
We can take some reminders, lessons or tips from these recent cases in the USA and the UK:
You may be able to use the “idea” of a copyright work (rather than using the work itself, as in the Beatles case) to create your own work so long as your own work does not have a substantial degree of similarity with the work you have taken inspriration from. As we saw in the Nike “jumpman” case, use of an “idea” (like Michael Jordan’s pose in Rentmeester’s photograph) as inspiration for an image that incorporates the same idea (like Nike’s photograph or “jumpman” logo) does not in itself constitute copyright infringement. There has to be a substantial degree of similarity between the images, which varies in the circumstances depending on whether the original work is capable of a “wide” range of expression or a “thin” range of expression.
If you are going to use a copyright work (like a video or soundtrack (as in the Beatles case) or a photograph, for example), make sure you have permission to do so from the owner of the copyright work, or otherwise make sure that your use fits under the a “fair use” concept in the country you are using the work (such as, “permitted acts” in New Zealand and “fair dealing” in Australia).