Nike Motion To Dismiss 'Jumpman' Lawsuit

Case 3:15-cv-00113-MO
Document 25
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Jon P. Stride, OSB #903887

Direct Dial: 503.802.2034
Direct Fax: 503.972.3734
Email: jon.stride@tonkon.com
Eric Beach, OSB #105783
Direct Fax: 503.972.3882
Email: eric.beach@tonkon.com
TONKON TORP LLP
1600 Pioneer Tower
888 SW Fifth Avenue
Portland, OR 97204-2099
Dale Cendali(pro hac vice)
Fax: 212.446.4900
Email: dale.cendali@kirkland.com
KIRKLAND & ELLIS LLP
601 Lexington Avenue
New York, NY 10022-4611
P. Daniel Bond (pro hac vice)
Direct Fax: 312.862.2200
Email: daniel.bond@kirkland.com
300 N. LaSalle Street
Chicago, IL 60654
Attorneys for Defendant Nike, Inc.
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
(PORTLAND DIVISION)
JACOBUS RENTMEESTER,
Plaintiff,
v.
Civil No. 3:15-cv-00113-MO

NIKE'S MOTION TO DISMISS
AND SUPPORTING
MEMORANDUM
NIKE,INC.,
Oral Argument Requested
Defendant.
NIKE'S MOTION TO DISMISS AND SUPPORTING MEMORANDUM
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TABLE OF CONTENTS
Page
LOCAL RULE 7-1(a) CERTIFICATION
MOTION
PRELIMINARY STATEMENT
BACKGROUND
ARGUMENT
I.
THE STANDARD FOR A MOTION TO DISMISS.
II.
SUBSTANTIAL SIMILARITY IS REQUIRED TO ESTABLISH

COPYRIGHT INFRINGEMENT
III.
SUBSTANTIAL SIMILARITY IN CASES INVOLVING

PHOTOGRAPHS OF THE SAME SUBJECT IS A HEIGHTENED
STANDARD
A.
Photographs of the Same Subject Cannot Be Substantially Similar Unless

They Are Virtually Identical.
11
There Is No Copyright Infringement If the Only Similarities Between Two

Photographs Relate to Unprotectable Elements
14
C.
Poses of Subjects Are Generally Not Protected by Copyright.
17
D.
If No Substantial Similarity Exists, a Photograph Is Not Infringing Even If

the Defendant Intentionally Tried to Recreate It.
21
B.
IV.
V.
10
RENTMEESTER CANNOT STATE A CLAIM FOR COPYRIGHT

INFRINGEMENT BECAUSE THE NIKE PHOTO AND JUMPMAN
LOGO ARE NOT SUBSTANTIALLY SIMILAR TO THE
RENTMEESTER PHOTO
23
A.
Numerous Components of the Rentmeester Photo Are Unprotectable.
23
B.
The Nike Photo Is Not Objectively Similar to the Rentmeester Photo
25
C.
The Jumpman Logo Is Not Objectively Similar to the Rentmeester Photo
30
RENTMEESTER CANNOT STATE A CLAIM FOR INDIRECT

COPYRIGHT INFRINGEMENT
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Page
VI.
RENTMEESTER CANNOT STATE A CLAIM UNDER THE DMCA.
32
VII.
RENTMEESTER CANNOT STATE A CLAIM FOR CERTAIN

DAMAGES
36
A.
B.
C.
Rentmeester Is Not Entitled to Statutory Damages or Attorneys' Fees for

Copyright Infringement.
36
Rentmeester's Claim for Actual Damages and Profits Prior to January 22,
2012 Is Time Barred.
38
Rentmeester Is Not Entitled to Punitive Damages
39
CONCLUSION
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TABLE OF AUTHORITIES
Page(s)
Cases
Agence France Presse v. Morel,
769 F. Supp. 2d 295 (S.D.N.Y. Jan. 14, 2011)
35
Alexander v. Murdoch,
2011 WL 2802923 (S.D.N.Y. July 14, 2011)
Allen v. Scholastic, Inc.,

739 F. Supp. 2d 642(S.D.N.Y. 2011)
Apple Computer, Inc. v. Microsoft Corp.,

35 F.3d 1435 (9th Cir. 1994)
9, 10
Ashcroft v. Iqbal,
556 U.S. 662 (2009)
7,33, 34
Bell Atlantic Corp. v. Twombly,

550 U.S. 544(2007)
7,33,34
Bill Diodato Photography, LLC v. Kate Spade, LLC,

388 F. Supp. 2d 382(S.D.N.Y. 2005)
19,20,24,25
Brown v. Stroud,
C-08-02348, 2011 WL 2600661 (N.D. Cal. June 30, 2011)
35
Cable v. Agence France Presse,

728 F. Supp. 2d 977(N.D. Ill. 2010)
35
Campbell v. Walt Disney Co.,

718 F. Supp. 2d 1108(N.D. Cal. 2010)
Carranza v. Universal Music Grp., Inc.,
536 F. App'x 734(9th Cir. 2013)
Christenson v. FLTI,
2013 WL 5781276(D. Or. Oct. 23, 2013)
Christianson v. West Pub. Co.,
149 F.2d 202(9th Cir. 1945)
Cory Van Rijn, Inc. v. Cal. Raisin Advisory Bd.,
697 F. Supp. 1136(E.D. Cal. 1987)
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37
3, 9
8
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Page(s)
Data E. USA, Inc. v. Epyx, Inc.,
862 F.2d 204(9th Cir. 1988)
10
Derek Andrew, Inc. v. PoofApparel Corp.,

528 F.3d 696(9th Cir. 2008)
37
Design Art v. Nat'l Football League Properties, Inc.,

2000 WL 1919787(S.D. Cal. Nov. 27, 2000)
39
DuckHole, Inc. v. NBC Universal Media LLC,

2013 WL 5797279(C.D. Cal. Sept. 6, 2013)
Erickson v. Blake,
839 F. Supp. 2d 1132(D. Or. 2012)
Ets-Hokin v. Skyy Spirits, Inc.,
323 F.3d 763 (9th Cir. 2003)
passim
4, 11, 12, 13
Fahmy v. Jay-Z,
835 F. Supp. 2d 783(C.D. Cal. 2011)
38
Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc.,

499 U.S. 340(1991)
8, 9
Fleming v. Miles,
181 F. Supp. 2d 1143(D. Or. 2001)
37
Fox v. Hildebrand,
2009 WL 1977996(C.D. Cal. July 1, 2009)
35
Funky Films, Inc. v. Time Warner Entm't Co., L.P.,

462 F.3d 1072(9th Cir. 2006)
10
Gadh v. Spiegel,
2014 WL 1778950(C.D. Cal. April 2, 2014)
Golan v. Holder,
132 S. Ct. 873(2012)
21, 23
Goldman v. Healthcare Mgmt. Sys., Inc.,

559 F. Supp. 2d 853(W.D. Mich. 2008)
Gordon v. McGinley,
2011 WL 3648606(S.D.N.Y. Aug. 18, 2011)
Harney v. Sony Pictures Television, Inc.,
704 F.3d 173 (1st Cir. 2013)
33
passim
21, 22, 23, 29
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Page(s)
Horgan v. Macmillan, Inc.,
789 F.2d 157(2d Cir. 1986)
24
Hughes Aircraft Co. v. U.S. ex rel. Schumer,

520 U.S. 939(1997)
33
Hunt v. Everitt,
91 F. App'x 584(9th Cir. 2004)
37
Kaplan v. Stock Market Photo Agency, Inc.,

133 F. Supp. 2d 317(S.D.N.Y 2001)
20, 21, 27, 29
Krisel v. Contempo Homes, Inc.,

2006 WL 5668181 (C.D. Cal. Sept. 27, 2006)
39
Landgrafv. USIFilm Prods.,

511 U.S. 244(1994)
33
Lee v. City ofL.A.,

250 F.3d 668 (9th Cir. 2001)
3, 7
Litchfield v. Spielberg,
736 F.2d 1352(9th Cir. 1984)
Mannion v. Coors Brewing Co.,

377 F. Supp. 2d 444(S.D.N.Y. 2005)
Masterson Mktg., Inc. v. KSL Recreation Corp.,
495 F. Supp. 2d 1044
20
passim
MDY Indus., LLC v. Blizzard Entm't, Inc.,

629 F.3d 928 (9th Cir. 2010)
35
Mercado Latino, Inc. v. Indio Products, Inc.,

2013 WL 2898224(C.D. Cal. June 12, 2013)
Mestre v. Vivendi Universal U.S. Holding Co.,
2005 WL 1959295(D. Or. Aug. 15, 2005)
Muromura v. Rubin Postaer & Assoc.,
2014 WL 4627099(C.D. Cal. Sept. 16, 2014)
8
10, 24, 25
passim
Murphy v. Millennium Radio Grp. LLC,

650 F.3d 295 (3d Cir. 2011)
35
Oboler v. Goldin,
714 F.2d 211 (2d Cir. 1983)
39
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Page(s)
Oddo v. Ries,
743 F.2d 630(9th Cir. 1984)
36
Olson v. Tenney,
466 F. Supp. 2d 1230(D. Or. 2006)
Perfect 10 v. Visa Intl Serv. Assoc.,

494 F.2d 788 (9th Cir. 2007)
32
Peter F. Gaito Architecture LLC v. Simone Dev. Corp.,

602 F.3d 57(2d Cir. 2010)
30
Petrella v. Metro-Goldwyn-Mayer, Inc.,

134 S. Ct. 1962(2014)
38
Precision Automation, Inc. v. Tech. Servs., Inc.,

628 F. Supp. 2d 1244(D. Or. 2008)
37
Reece v. Island Treasures Art Gallery, Inc.,

468 F. Supp. 2d 1197(D. Haw. 2006)
17, 18,25,29
Reinicke v. Creative Empire, LLC,

2013 WL 275900(S.D. Cal. Jan. 24, 2013)
39
Rivas v. Rail Delivery Serv., Inc.,

423 F.3d 1079(9th Cir. 2005)
33
Roley v. New World Pictures, Ltd.,

19 F.3d 479(9th Cir. 1994)
38
Saregama India Ltd. v. Young,

2003 WL 25769784(C.D. Cal. Mar. 11, 2003)
39
Satava v. Lowry,
323 F.3d 805 (9th Cir. 2003)
10
SHL Imaging, Inc. v. Artisan House, Inc.,

117 F. Supp. 2d 301 (S.D.N.Y. 2000)
11
Sid & Marty Kroft Tel. Prods., Inc. v. McDonald's Corp.,

562 F.2d 1157(9th Cir. 1977).
Smith & Hawken, Ltd. v. Gardendance, Inc.,

2004 WL 2496163(N.D. Cal. Nov. 5, 2004)
39
Textile Secrets Intern., Inc. v. Ya-Ya Brand, Inc.,

524 F. Supp. 2d 1184(C.D. Cal. 2007)
35
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Page(s)
Thomas v. Walt Disney Co.,
337 Fed. App'x 694(9th Cir. 2009)
United States ex rel. Anderson v. Northern Telecom, Inc.,

52 F.3d 810(9th Cir. 1995)
33
United States v. Elcom, Ltd.,

203 F. Supp. 2d 1111 (N.D. Cal. 2002)
34
Watermark Publishers v. High Tech. Systems Inc.,

44 U.S.P.Q.2d 1578(S.D. Cal. 1997)
38
Zella v. E. W. Scripps Co.,

529 F. Supp. 2d 1124(C.D. Cal. 2007)
Statutes
17 U.S.C. 102
10
17 U.S.C. 1202
32
17 U.S.C. 1203
38
17 U.S.C. 412
36
17 U.S.C. 504
9,38
17 U.S.C. 507(b)
38
Other Authorities
U.S. Copyright Office,
Compendium of U.S. Copyright Office Practices 805.5 (3d ed. 2014)
24
Rules
Fed. R. Civ. P. 12
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LOCAL RULE 7-1(a) CERTIFICATION

Counsel for Defendant and Plaintiff have conferred by telephone and Plaintiff opposes
Defendant's Motion to Dismiss.
MOTION
Nike moves to dismiss the Complaint filed by Rentmeester for failure to state a claim
upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6).
PRELIMINARY STATEMENT
Plaintiff Jacobus Rentmeester's ("Rentmeester") Complaint, alleging copyright
infringement by Nike, Inc. ("Nike), presents exactly the sort of meritless case that motions to
dismiss are intended to address. This Court need look no further than the photographs and logo
themselves to find that they are not substantially similar as a matter of copyright law.
Rentmeester alleges that a photograph of the legendary Michael Jordan dunking a
basketball, which Nike created over thirty years ago, and the iconic "Jumpman" logo, which
Nike has used as the face of its Brand Jordan for the last twenty-five years, infringe
Mr. Rentmeester's copyright in a photograph taken in 1984, which also features Michael Jordan
dunking a basketball.
Rentmeester's claims are baseless. Ninth Circuit law is clear that copyright protection for
photographs is thin and that infringement can only occur where two photographs of the same
subject are virtually identical. Rentmeester falls far short of that standard here given the
significantand self-evident differences in the mood, lighting, setting, expression, color, style,
and overall look and feel of his photograph, on the one hand, and Nike's photograph and logo, on
the other. Indeed, Rentmeester's decades-long delay in filing suit speaks volumes regarding his
own assessment of the merits.
Simply put, Rentmeester does not have a monopoly on
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Mr. Jordan, his appearance, his athletic prowess, or images of him dunking a basketballhis
copyright begins and ends with his specific original expression of that subject and theme. As
explained below, Rentmeester cannot show that Nike copied any protected expression as a matter
of law and this Court should dismiss his infringement claims.
Rentmeester also alleges that Nike violated the Digital Millennium Copyright Act
("DMCA") by removing unidentified copyright management information ("CMI") from his
photo. But Rentmeester's inability to state a claim for copyright infringement is fatal to his
DMCA claimNike is free to claim copyright protection over its own original works, and is not
required to credit Rentmeester for works he did not create. Moreover, Rentmeester's DMCA
claim is premised on actions that Nike allegedly took long before that statute came into effect.
Regardless, Rentmeester's DMCA claim is insufficiently pleadhe does not allege what CMI
was included on (much less removed from) his photo or the required nexus between Nike's
alleged conduct and the underlying purposes of the DMCA.
In addition, Rentmeester asserts a variety of overreaching damages demands, which also
must be dismissed. First, he improperly seeks statutory damages and attorney's fees for
copyright infringement, which are unavailable to him as a matter of law because he did not
obtain a registration within the prescribed time. Second, Rentmeester seeks actual damages and
profits dating back to the 1980'sbut the statute of limitations for actions under the Copyright
Act is clear that a plaintiff is only entitled to damages for the three years preceding the filing of a
complaint. Finally, Rentmeester improperly seeks punitive damages, which are not available for
his claims.
Accordingly, Nike respectfully seeks a dismissal of all of Rentmeester's claims under
Rule 12(b)(6).
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BACKGROUND
Rentmeester alleges that in 1984, he created a photograph of Michael Jordan dunking a
basketball (the "Rentmeester Photo"), which was published in LIFE magazine. [Dkt. 1
TT 2, 26.]
Nike has provided a copy of the issue of LIFE containing the Rentmeester Photo for the Court's
reference. (Declaration of Dale Cendali ("Cendali Decl.") at Exhibit A.) For the convenience
of the Court, a smaller version of the Rentmeester Photo is provided below:
Rentmeester did not register his copyright in the Rentmeester Photo until December 18, 2014,
more than thirty years after it was taken and shortly before he filed the Complaint. [Id. 29.]
On a motion to dismiss, courts can consider materials that are incorporated by reference in
the complaint. See Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001); see also
Christianson v. West Pub. Co., 149 F.2d 202, 203 (9th Cir. 1945)("[W]hen the copyrighted
work and the alleged infringement are both before the court, capable of examination and
comparison, non-infringement can be determined on a motion to dismiss").
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Rentmeester alleges that Nike had access to the Rentmeester Photo, and at some point
"[b]etween August 1984 and February 1985" Nike "produce[d] a nearly identical photograph" of
Mr. Jordan dunking a basketball. [Id. 5, 31, 34.]. Rentmeester also alleges that the Nike
Photo "reproduces several original elements of the [Rentmeester] Photo" and was used in
"billboards, posters, and other promotional materials." [Dkt. 1
Ifirf 5, 35, 3912
Nike has provided
a copy of the poster-size version of the Nike Photo as it appeared in the poster for the Court's
consideration. (Cendali Decl. at Ex. B.) For the convenience of the Court, a smaller version is
depicted below:
Rentmeester also alleges that he entered into a series of license agreements with Nike
somehow related to the Rentmeester Photo. [Id. at TR 32, 38.] While Nike disputes
Rentmeester's characterizations of those documents, the existence or substance of those
agreements is immaterial to the issue of substantial similarity. These agreements only relate
to purported licenses to Nike to use the Rentmeester Photo (described as the "image 'Michael
Jordan')[Dkt. 1. at Ex. A, B.] Any purported license by Nike of the Rentmeester Photo has
no bearing on substantial similarity. See, e.g., Ets-Hokin v. Skyy Spirits, Inc., 323 F.3d 763,
765 (9th Cir. 2003)(granting summary judgment that two photographs were not substantially
similar despite allegation that plaintiff "took a series of photographs ... for use in a [Skyy]
marketing campaign" and Skyy "later hired two other photographers" to take similar
photographs); Muromura v. Rubin Postaer & Assoc., 2014 WL 4627099, *1 (C.D. Cal. Sept.
16, 2014)(granting motion to dismiss due to lack of substantial similarity between plaintiff's
photograph and defendant's television advertisement even though defendant allegedly
"rented one of plaintiff s two available works" and subsequently created allegedly similar
works and later offered to pay her a "creative consultant fee); Masterson Mktg., Inc. v. KSL
Recreation Corp., 495 F. Supp. 2d 1044, 1047 (granting summary judgment that two
photographs were not substantially similar even though defendant allegedly "terminated [a]
licensing agreement with plaintiff. . . [and] hired another photographer ... to duplicate
plaintiffs original photo"). Rentmeester does not allege a breach of these agreements by
Nike, further demonstrating their irrelevance to the instant motion.
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Rentmeester further alleges that in 1987, Nike began using a logo based on Mr. Jordan's
silhouette in the Nike Photo (the "Jumpman Logo") for its Air Jordan athletic shoes. [Id. 40,
44, 47.] The Jumpman Logo is depicted below:
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[Dkt. 1 1140.] Rentmeester claims that the Jumpman Logo infringes because it is "nearly
identical" to the "silhouette of Mr. Jordan" in the Rentmeester Photo. [Id. 40-41.] Notably,
however, Rentmeester never created a silhouette of his 1984 photohis "similarly stylized"
silhouette was created solely for purposes of this Complaint. [Id. 9, 41.]
Rentmeester admits that he was aware of the Nike Photo in 1985 and that the Jumpman
Logo was used "extensively to market [Nike's] Jordan products" and was an "integral part of
Nike's marketing strategy" [Dkt. 1 9, 11]yet he waited decades to bring this lawsuit for
direct, contributOry, and vicarious infringement and violation ofthe DMCA.
Rentmeester also alleges that Nike violated the DMCA when it created the Nike Photo
and Jumpman Logo by "intentionally remov[ing] and/or alter[ing]" unspecified CMI associated
with the Rentmeester Photo. [Id. 1177.]
ARGUMENT
As discussed in further detail below, Rentmeester cannot state a claim for copyright
infringement because the Nike Photo and the Jumpman Logo are not substantially similar to the
Rentmeester Photo as a matter of law. Because Rentmeester cannot state a claim for direct
infringement, his claims for indirect infringement also fail. Moreover, Rentmeester's DMCA
claim must be dismissed because it is both legally unsupportable and inadequately plead. Nike's
alleged removal of CMI occurred long before the DMCA took effect, and in any case,
Rentmeester fails to allege that CMI was present on the copies of the Rentmeester Photo that he
claims Nike used, or that Nike removed or altered such information. Nor does Rentmeester
claim that Nike's alleged conduct has any nexus with the Internet or e-commerce, which courts
have held is required for such a claim. Finally, many of Rentmeester's damages claims fail for
independent reasons as he is not entitled to statutory damages, punitive damages, or attorneys'
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fees for his copyright claims, and the statute of limitations bars any effort by Rentmeester to
collect actual damages or profits attributable to infringement or purported DMCA violations
prior to January 22, 2012 (i.e., three years before filing his Complaint).
I.
THE STANDARD FOR A MOTION TO DISMISS.

To survive a motion to dismiss pursuant to Rule 12(b)(6), the Complaint "must include
sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). While the Court must accept as true all well-pleaded factual allegations, the
Court need not accept the plaintiff's legal conclusions. Erickson v. Blake, 839 F. Supp. 2d 1132,
1134 (D. Or. 2012). When considering a Rule 12(b)(6) motion, the Court may consider matters
and materials contained within the parties' pleadings, as well as materials that are attached to the
complaint and materials on which the plaintiff's case necessarily relies, where the authenticity of
those materials is not disputed. Lee v. City ofL.A., 250 F.3d 668,688 (9th Cir. 2001).
Courts, including those in the Ninth Circuit, routinely grant motions to dismiss copyright
infringement claims where no substantial similarity exists. See Thomas v. Walt Disney Co., 337
Fed. App'x 694 (9th Cir. 2009)(affirming grant of motion to dismiss because "the district court
properly entered judgment for defendants because, as a matter of law, [plaintiffs] literary work
was not substantially similar to defendants' animated movie). This is true whether the works
compared are photographs, novels, screenplays, musical compositions or other copyrighted
works.3
See also Erickson, 839 F. Supp. 2d at 1138 (granting motion to dismiss copyright
infringement claim because "what is original about that expression [of plaintiff's musical
work]the cadence, flourishes, harmonies, structure, and so onis not virtually identical, or
even particularly similar, to [defendant's musical work]"); Christenson v. FLTI, 2013 WL
5781276, at *8 (D. Or. Oct. 23, 2013)(granting motion to dismiss copyright infringement
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II.
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SUBSTANTIAL SIMILARITY IS REQUIRED TO ESTABLISH COPYRIGHT

INFRINGEMENT.
To state a claim for infringement, a plaintiff 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, a plaintiff must allege
claim related to competing manuscripts where "plaintiffs copyright is thin .. . [and] there is
no argument or evidence indicating that any remaining similarities are virtually identical");
Muromura, 2014 WL 4627099, at *3-*4 (granting motion to dismiss complaint alleging that
defendant's television commercial infringed plaintiffs photographs because "Defendants'
alleged infringing work is not substantially similar, let alone virtually identical, to [Plaintiffs
work]"); Gadh v. Spiegel, 2014 WL 1778950, at * 4 at n. 6 (C.D. Cal. April 2, 2014)
(granting motion to dismiss claim that the movie infringed plaintiffs screenplay where
alleged similarities related to "nothing more than an unprotected idea"); DuckHole, Inc. v.
NBC Universal Media LLC, 2013 WL 5797279, at *5-*9 (C.D. Cal. Sept. 6, 2013)("The
Ninth Circuit has long held that non-infringement can be determined on a motion to dismiss"
and "each factor of the extrinsic test militates so strongly in defendants' favor that no
reasonable jury could conclude that [the works at issue] are substantially similar"); Mercado
Latino, Inc. v. Indio Products, Inc., 2013 WL 2898224, at *2-*3 (C.D. Cal. June 12, 2013)
(granting motion to dismiss where plaintiff "seeks protection for artwork with the
`appearance of cathedral window-shaped stained glass" and such design was "a widespread
and longstanding staple of devotional iconography, to which [plaintiff] can lay no copyright
claim"); Allen v. Scholastic Inc., 739 F. Supp. 2d 642, 664-65 (S.D.N.Y. 2011) (granting
motion to dismiss claim that defendant's Harry Potter novel infringed plaintiffs "Willie the
Wizard" novel because, inter alia, "wizard versions of real-life institutions . . . are scenes a
faire relating to the unprotectable theme of a wizard society" and thus "there can be no
substantial similarity"); Alexander v. Murdoch, 2011 WL 2802923 (S.D.N.Y. July 14, 2011)
(granting motion to dismiss claim that defendant's show "Modern Family" infringed
plaintiffs screenplay where similarities related only to "uncopyrightable stock characters"
and "the choice of Los Angeles as a setting"); Campbell v. Walt Disney Co., 718 F. Supp. 2d
1108, 1115 (N.D. Cal. 2010) (granting motion to dismiss claim that defendant's animated
film infringed plaintiffs screenplay where "the two works are not substantially similar as a
matter of law" and "this defect cannot be cured by amendment"); Zella v. E. W. Scripps Co.,
529 F. Supp. 2d 1124, 1138-39 (C.D. Cal. 2007) (granting motion to dismiss claim that
defendant's cooking/talk show infringed plaintiffs treatment for a cooking/talk show
because allowing suit to proceed "would give Plaintiffs a monopoly over ... generic
elements expressed as a television talk show featuring celebrity guests and cooking"); Cory
Van Rijn, Inc. v. Cal. Raisin Advisory Bd., 697 F. Supp. 1136, 1144 (E.D. Cal. 1987)
(granting motion to dismiss because defendant's use of "Claymatic Raisin" characters was
not substantially similar to plaintiffs "Raisin People" because "there are no extrinsic
similarities between the two works other than the common idea of an anthropomorphic
raisin").
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facts that demonstrate that the defendant had access to the plaintiff's work and that the works at
issue are "substantially similar."4 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). As noted above, whether there is sufficient objective
similarity under the extrinsic test may be decided by the court as a matter of law on a motion to
dismiss by viewing the works. See, e.g., Christianson, 149 F.2d at 203.
When applying the
extrinsic test, courts must "analytically dissect the works to evaluate any similarities on an
element-by-element basis." Erickson, 839 F. Supp. 2d at 1136 (citing Apple Computer, Inc. v.
Microsoft Corp., 35 F.3d 1435, 1443 (9th Cir. 1994)).5
Not every constituent element of a copyrighted work is protected by copyright. Feist,
499 U.S. at 348. As such, 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 to an unprotected element. See Apple Computer, 35 F.3d at 1443.
4
Solely for the purposes of this motion, Nike does not dispute Rentmeester's purported
ownership of a valid copyright in the Rentmeester Photo or his claim that Nike had access to
the same. As discussed below, Nike moves to dismiss the copyright claim on the grounds
that the works are not substantially similar.
Because the question of objective similarity under the extrinsic test is a threshold question
that this Court can resolve on a motion to dismiss, it need not address the intrinsic test. See,
e.g., Erickson, 829 F. Supp. 2d at 1135-36 ("Whether there is sufficient objective similarity
under the extrinsic test .. . may be decided by the court as a matter of law on a motion
dismiss" so there is no need to analyze "Mlle intrinsic test, which is based on the ordinary
person's subjective impressions" on a motion to dismiss).
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Unprotected elements of a copyrighted work can include ideas, as opposed to expression, and
expressions that are indistinguishable from (or have merged with) the underlying ideas.
Erickson, 839 F. Supp. 2d at 1136 (citing 17 U.S.C. 102(b) ("In no case does copyright
protection for an original work of authorship extend to any idea . . . [or] concept.")); see also
Data E. USA, Inc. v. Epyx, Inc., 862 F.2d 204, 208 (9th Cir. 1988)("To the extent the similarities
between plaintiffs and defendant's works are confined to ideas and general concepts, these
similarities are noninfringing."). As this Court itself has observed, "it is the expression ofideas
that receive protection and not the ideas themselves . . [and][s]imilarities derived from the use
of common ideas cannot be protected; otherwise, the first to come up with an idea will corner
the market." Mestre v. Vivendi Universal U.S. Holding Co., 2005 WL 1959295, at *6 (D. Or.
Aug. 15, 2005)(citing Apple Computer, 35 F.3d at 1443)(emphasis added). Likewise, copyright
protection also does not extend to "expressions that are standard, stock, or common to a
particular subject matter or medium" referred to as "scenes a faire." Erickson, 839 F. Supp. 2d
at 1136 (citing Satava v. Lowry, 323 F.3d 805, 810(9th Cir. 2003)).
Once any unprotected ideas, stock elements, or scenes a faire have been "filter[ed] out
and disregard[ed]," the Court considers the scope of the copyrighted work. Funky Films, Inc. v.
Time Warner Entrn't Co., L.P., 462 F.3d 1072, 1077 (9th Cir. 2006). "If few similarities remain
after unprotected elements are set aside ..., the scope of the copyright is 'thin,' which means
that it only protects the copyrighted work from virtually identical copying." Erickson, 839 F.
Supp. 2d at 1138.
III.
SUBSTANTIAL SIMILARITY IN CASES INVOLVING PHOTOGRAPHS OF

THE SAME SUBJECT IS A HEIGHTENED STANDARD.
In the context of photographs, additional principles factor in.
Most significantly, the
standard is more exacting and a plaintiff must show that two photographs of the same subject are
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"virtually identical" and that the similarities are not limited to unprotectable elements. EtsHokin, 323 F.3d at 766. In addition, poses of subjects are generally not protected by copyright;
rather, only the particular expression of the poses is protectable. Lastly, a plaintiff's claim that a
defendant intended to recreate or mimic another photograph has no bearing on substantial
similaritythe test is not what a plaintiff believes a defendant did or did not do, it is simply
whether two photographs ofthe same subject are virtually identical.
A.
Photographs of the Same Subject Cannot Be Substantially Similar Unless

They Are Virtually Identical.
In the context of photographic works, the Ninth Circuit has made clear that photographs
of the same subject are entitled to thin protection and must be "virtually identical" to find
infringement. Id. (emphasis added). "[A] photograph does not, and cannot create a copyright in
the underlying subject matter . .. and even relatively small differences in two photographs may
exclude copyright infringement." Masterson Mktg., 495 F. Supp. 2d at 1049(emphasis added);6
see also SHL Imaging, Inc. v. Artisan House, Inc., 117 F. Supp. 2d 301, 311 (S.D.N.Y. 2000)
(photographic works "are only protected from verbatim copying")(emphasis added).
For example, in Ets-Hokin, a photographer who photographed Skyy Vodka's "iconic blue
vodka bottle for a marketing campaign alleged that Skyy subsequently commissioned
photographs that infringed his work. Ets-Hokin, 323 F.3d at 765. The photographs at issue in
this case are depicted below (Cendali Decl. at Ex. C at 15, 17, 52, 78):
While these cases involved motions for summary judgment rather than motions to dismiss,
the standards are the same in either casewhether the photographs at issue are objectively
similar under the extrinsic test. Compare Ets-Hokin, 323 F.3d at 766 (affirming grant of
summary judgment based solely on a review of the photographs at issue) with Erickson 839
F. Supp. 2d at 1135 ("Whether there is sufficient objective similarity under the extrinsic
test . .. may be decided by the court as a matter oflaw on a motion to dismiss").
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Defendant
The district court granted summary judgment for Skyy, based solely on a review of the
photographs at issue, and found "the allegedly infringing photographs [were] not 'virtually
identical'" in light of the doctrines of merger and scenes
a faire.
Id. at 764-65. The Ninth
Circuit affirmed, finding that after "subtracting the unoriginal elements [of plaintiffs
photograph], Ets-Hokin is left with only a 'thin' copyright, which protects against only virtually
identical copying" since "the range of protectable expression is constrained both by the subject
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matter idea of the photograph and the conventions of the commercial product photo shoot." Id.
at 766. Infringement could not lie since "Skyy's photographs are not virtually identical to those
of Ets-Hokin" and "differ[ed] in as many ways as possible' given the nature of the photographs:
"[t]he lighting differs; the angles differ; the shadows and highlighting differ, as do the reflections
and background." Id. Because "[t]he only constant is the [subject] itself... [t]he photographs
[were] not infringing." Id.
Cases involving copyright infringement claims related to photographs in this Circuit and
others apply a similarly exacting standard. For example, a district court in this Circuit applied a
similar approach in granting summary judgment of non-infringement, based largely on a review
of the photographs at issue, in Masterson Mktg., Inc. v. KSL Recreation Corp., 495 F. Supp. 2d
1044 (S.D. Cal. 2007). In Masterson, the plaintiff alleged that defendants committed copyright
infringement by "re-creat[ing] [his] photographs of Squaw Peak" after previously licensing them.
Id. at 1046. These photographs are shown below:
Plaintiff
Defendant
(Cendali Decl., Ex. D at 12, 14.) In granting summary judgment for defendants, the district court
noted that "a photograph does not and cannot create a copyright in the underlying subject matter"
and that "[f]or photos of existing objects, even relatively small differences in two photos may
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exclude copyright infringement." Masterson, 495 F. Supp. 2d at 1048 (emphasis added). Since
"[t]he subject matter of a photograph of a .. . scene ... is not copyrightable," the court held that
defendant did not infringe even though the "photos were taken from the same vantage point and
are in a [similar] format." Id. at 1048-49.
B.
There Is No Copyright Infringement If the Only Similarities Between Two

Photographs Relate to Unprotectable Elements.
Further, if the only similarities between the photographs are unprotectable elements, a
plaintiff cannot establish a claim for copyright infringement. In Muromura, a court granted a
motion to dismiss a claim that Honda infringed copyrighted photographs of plaintiff's sculptures
of magnetic ferrofluids "forming a series of patterns in response to magnets" by including similar
images in its television commercials. 2014 WL 4627099, at *1. Like Rentmeester, plaintiff
alleged that Honda had rented a copy of her sculptures for a fee, and subsequently included
substantially similar images in an advertising campaign without permission. Id. These images
are reproduced below:
Plaintiffs Photographs
Stills from Defendant Honda's Ad

111111111111111111111.-
11111.1114b.
,
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Id. at *3.7 Applying the extrinsic test, the court found that after "stripping out... the nonprotectable natural qualities of ferrofluid, the only elements that remain are plaintiffs artistic
choices with respect to mood, setting, pace, sequence of events, colors, and materials." Id.
(emphasis added). The court also noted important distinctions in the protected expression of
these works, including the different settings and perspectives they employedplaintiffs photo
was "zoomed in very close" on "a featureless white container" while defendant's commercial
was set "in an empty residential room with a large skylight" and showed the ferrofluid from
various perspectives and distances. Id. at *3. As such, the district court dismissed plaintiffs
claims on the pleadings. Id. at *4.
The Southern District of New York similarly disposed of claims made by an art
photographer that another photographer committed copyright infringement by creating
photographs that were "'blatantly and subtly derivative' of Plaintiffs work" in Gordon v.
McGinley, 2011 WL 3648606 (S.D.N.Y. Aug. 18, 2011), vacated in part on other grounds by
Gordon v. McGinley, 502 Fed. Appx. 89(2d Cir. 2012). Exemplary photos are shown below:
photos
are
available
on
her
website.
See
Plaintiffs
March
13,
2015).
The
http://sachikokodama.com/text/works/pf01/pf2.html (last visited
screenshots above are drawn from Honda's commercial, which is available online.
http://www.streetfire.net/video/acura-zdx-oil-commercial_749300.htm (last visited March
13, 2015).
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Defendant
McGinley Image(Ex. A-1)

Gordon Image(Ex. A-1)
Gordon Image (Exs. A-13, A-66, A-67)
McGinley Image(Ex. A-67)
Based on a review of the photographs attached to the complaint, the Gordon court found that the
plaintiff"failed to meet even the most basic threshold for pleading copyright infringement." Id.
at *1. As to the first pair of photographs, the court noted that while both photographs depicted
"young
men suspended before a cloudy sky, each with his right arm extended and bent at an
approximate right angle . . . there the similarity ends." Id. at *3-*4. The court observed selfevident differences in the clothing worn, the models' haircuts and expressions, and the "overall
feel" of the photos, and found that "[n]o dissection of the images is required to discern the 'utter
lack of similarity' between [them]." Id. at *4. As to the second pair of photographs, the court
found they "best illustrated" the "flaw in Plaintiffs case." Id. The court noted that aside from
the use of "outstretched arms," the photos differed significantlyplaintiffs photo depicted the
subject in front of"a crowded street scene'(creating a feel of "responsive contact" and "urban
grit"), while defendant depicted the subject behind a studio backdrop and thus appears "solitary"
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by comparison. Id. at *5. The court was not moved by claims by the plaintiff that defendant
committed copyright infringement by creating photographs that may have been derivative:
Thefact that McGinley's works may be ultimately derivative and unoriginal in
an artistic sensesomething which the Court has neither the expertise nor
inclination to pronounce uponis beside the point. Most commercial advertising
is derivative in that sense, and as the Second Circuit has observed, not all
copying results in copyright infringement.' Plaintiff's apparent theory of
infringement would assert copyright interests in virtually any figure with
outstretched arms . . Such a conception of copyright law has no basis in
statute, case law, or common sense, and its application would serve to
undermine rather than promote the most basicforms ofartistic expression.
Id. at *7(emphasis added). As such, the court granted a motion to dismiss plaintiff's claims.
C.
Poses of Subjects Are Generally Not Protected by Copyright.
General poses, such as those used in dance, are also not copyright protected. See Reece v.
Island Treasures Art Gallery, Inc., 468 F. Supp. 2d 1197, 1206 n.14(D. Haw. 2006)("[I]n cases
involving photographs, 'a plaintiff's copyrights cannot monopolize the various poses used,' and
`can protect only [p]laintiffs particular photographic expression of these poses and not the
underlying ideas therefor.'").
In Reece, a district court in this Circuit found that plaintiff was unlikely to succeed on the
merits of his claim that an artist's stained glass piece infringed upon a photograph he had taken
of a hula dancer. These pictures are shown below:
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Defendant
(Cendali Decl., Ex. E at 113.) Despite some seeming similarities, the court found that plaintiff
was unlikely to prevail on the merits because the copyright was "thin" and the works were not
"virtually identical":
In the context of 'thin' protection, [the works] are not virtually identical.
Although the position of the dancer in the `ike motion is common to both
artworks and both are set on Kailua beach, they cannot be described as
substantially or virtually identical. The appearance of the dancers is
different.... The mountains and ocean dominate the upper halfofthe stained
glass, but not the photograph. The dancers' hairstyles are notably different
lengths and shapes. Finally, the sepia tone of the photograph is markedly
contrasted by the vibrant colors of the stained glass. . .. Undoubtably [sic], the
central figure in each workthe danceris remarkably similar in both her
position toward the viewer and in her bodily proportions. These similarities
alone, however, do not mean that 'an ordinary reasonable person' would
perceive a substantial taking ofprotected expression.
Id. at 1208-09 (emphasis added). The court found that plaintiff could not show objective
similarity because "[t]he protectable elements of a photograph generally include lighting,
selection of film and camera, angle of the photograph, and determination of the precise time
when a photograph is to be taken." Id. at 1206. Because defendant did not appropriate that
expression, plaintiff was not likely to prevail on the merits of his infringement claim. Id. at
1209.
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Other courts have similarly held that general poses cannot be copyrighted. In Bill
Diodato Photography, LLC v. Kate Spade, LLC, the court stated that "a pose cannot be
copyrighted ...[and] in cases involving photographs a 'plaintiffs copyrights cannot monopolize
the various poses used,' and can protect only plaintiffs particular photographic expression of
those poses, and not the underlying ideas therefor." 388 F. Supp. 2d 382, 393 (S.D.N.Y. 2005).
In that case, the court granted summary judgment of non-infringement where a plaintiff alleged
that Kate Spade re-created his copyrighted photograph after he submitted it for their
consideration. Bill Diodato, 388 F. Supp. 2d at 394. These photographs are shown below:
Plaintiff
Defendant
(Cendali Decl., Ex. F at 9, 11.) The court reasoned that much of the photographs' respective
composition was necessarily derived from the idea of"the depiction of a woman's feet as she sits
on the toilet, used as a striking device to highlight fashion accessories," including "the dominant
shapes of the woman's legs and the toilet base,... the inclusion of fashionable shoes and
underwear,... the bathroom walls in the background,...[and][t]he bathroom as a setting," and
thus were "not protectable." Id. at 392. Many of the other compositional details necessarily
flowed from the idea of the idea and thus constituted scenes
a faire.
For example, all such
photos would necessarily be "framed by the floor and bathroom walls," would likely be shot
"from or near the floor," and likely with "a head-on view of the toilet." Id. Setting such
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unprotectable elements to one side, the court found that plaintiff could not demonstrate
infringement given the numerous differences in the photographs. While plaintiff "use[d] an
abundance of negative grey space," the defendant's photo was "brightly lit." Id. at 393. And
while plaintiff's photo selected accessories designed to "give the photograph an airy and
provocative feel . .. highlighted by their color and .. . almost planted into the backdrop of a
toilet stall," the "mood, colors, light, and depth of objects [in defendant's photograph] are
distinct and the view is tightly cropped." Id.
Similarly, in Kaplan v. Stock Market Photo Agency, Inc., a district court found that two
photographs of"a businessperson contemplating a leap from a tall building to the street below"
were not substantially similar "as a matter of law." Kaplan, 133 F. Supp. 2d 317, 328 (S.D.N.Y
2001). These photographs are reproduced below:
Defendant
Plaintiff
The defendants' photograph in Kaplan
See Mannion v. Coors Brewing Co., 377 F. Supp. 2d 444, 467-68 (S.D.N.Y. 2005)(containing
Kaplan photos). The court noted that since "the subject matter of both photographs is a
businessperson contemplating a leap from a tall building" the borrowing of plaintiff's
"photographs central idea, rather than [plaintiffs] expression of that idea . . . is unprotectable in
and of itself." Kaplan, 133 F. Supp. 2d at 323. Looking to the similarities, the court found that
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"almost all of the similarities in expression between the two photographs are unprotectable
elements or themes that predictably flow from the underlying subject matter. Id. at 324. And
there were clearly ample differences. While the subjects were dressed "in similar attire .. . the
suits and shoes in the respective photographs are different in color." Id. at 325. Though both
photographs were "taken from a similar angle or viewpoint," that seeming similarity was
irrelevant since there were differences in the amount of the leg shown and the location of the
photos. Id. at 326. Mere similarity in perspective was immaterial since "the angle and viewpoint
used in both photographs are essential to, commonly associated with, and naturally flow from the
photograph's unprotectable subject matter." Id.
Moreover, significant differences in the
background and perspective of the photos, the "lighting, shading, and color" of the photos, and
the general "mood" precluded infringement. Id. at 327.
D.
If No Substantial Similarity Exists, a Photograph Is Not Infringing Even If

the Defendant Intentionally Tried to Recreate It.
As discussed above, substantial similarity (or virtual identity) is a necessary element of

copyright infringement. As such, courts will not find copyright infringement where there is no
substantial similarity. This is true, even if the defendant fully intended to recreate another's
photograph. As the First Circuit has stated, "it is permissible to mimic the non-copyrightable
elements of a copyrighted work." Harney v. Sony Pictures Television, Inc., 704 F.3d 173, 178
(1st Cir. 2013); see also Golan v. Holder, 132 S. Ct. 873, 890 (2012)("[E]very idea ... in a
copyrighted work becomes instantly available for public exploitation at the moment of
publication.").
In Harney, plaintiff took a photograph of a father and daughter leaving a Palm Sunday
service with the daughter riding piggyback on her father's shoulders, which became iconic after
the father subsequently abducted his daughter. Harney, 704 F.3d at 176-77. A few years later,
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Sony made a made-for-television movie about the incident, and "recreated [plaintiffs photo]
using the actors." Id. These photographs are shown below:
Jamey Photo
Id. at 189. The First Circuit affirmed a grant of summary judgment, based solely on an analysis
of the pictures at issue, and found that while "Sony's Image and Harney's Photo are similar, as
Sony intended ...; the question of infringement is governed not merely by whether the copy
mimics the plaintiffs works, but also, more importantly, by whether the similarity arisesfrom
protected elements of the original." Id. at 188 (emphasis added). The court reasoned that any
seeming similarity between the photographs was largely a result of"the piggyback pose that was
not [plaintiffs] creation and is arguably so common that it would not be protected even if
[plaintiff] had placed[them]in that position." Id. at 187 (emphasis added). There could be no
infringement given that "the two photographs are notably different in lighting and coloring,
giving them aesthetically dissimilar impacts." Id. The court further noted significant differences
in the outfits worn by the respective subjects, the background used in the respective pictures, and
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the positioning of the subjects' arms. Id. at 177-78. "[G]iven the differences in background,
lighting and . . . detail . .. Sony copied little of [plaintiffs] original work."
Id. at 188.
Numerous courts have endorsed this holding. See, e.g., Golan, 132 S. Ct. at 890 ("[E]very
idea . . . in a copyrighted work becomes instantly available for public exploitation at the moment
of publication."); see also Muromura, 2014 WL 4627099 at *1 (no infringement even though
plaintiff alleged that defendant rented a copy of her works and subsequently included
substantially similar images in an ad campaign without permission); Masterson, 495 F. Supp. 2d
at 1046 (no infringement though plaintiff alleged that defendant "re-created [his] photographs of
Squaw Peak" after previously licensing them).
IV.
RENTMEESTER CANNOT STATE A CLAIM FOR COPYRIGHT

INFRINGEMENT BECAUSE THE NIKE PHOTO AND JUMPMAN LOGO ARE
NOT SUBSTANTIALLY SIMILAR TO THE RENTMEESTER PHOTO.
A simple visual comparison of the works at issue here confirms that Rentmeester cannot
state a claim for copyright infringement because the works are not substantially similar. As
discussed below, after filtering out the unprotectable elements in the Rentmeester Photo, the
remaining elements are strikingly different from those in the Nike Photo and Jumpman Logo. In
other words, the works are not objectively similar and thus the claim must be dismissed.
A.
Numerous Components of the Rentmeester Photo Are Unprotectable.
Before comparing the works at issue here, this Court must first "filter out and disregard
the nonprotectable elements" of the Rentmeester Photo, including all "elements of expression
that necessarily follow from an idea, or expressions that are as a practical matter, indispensable
or at least standard in the treatment of an idea." See, e.g., Muromura,2014 WL 4627099, at *2.
Rentmeester cannot claim copyright over the "idea" of Michael Jordan dunking a
basketball. See Erickson, 839 F. Supp. 2d at 1136 ("[I]t is axiomatic that a copyright only
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protects expression, not the idea behind the expression."); Mestre, 2005 WL 1959295 at *6 ("[I]t
is the expression ofideas that receive protection and not the ideas themselves.")(J. Mosman).
Nor can Rentmeester claim copyright protection in other aspects of his photo that
necessarily flow from the very idea of Michael Jordan (or any other person) dunking a
basketball. These scenes afaire include a basketball, a basketball hoop, a player wearing athletic
clothing and footwear, and a player holding the ball and jumping. Rentmeester cannot claim
protection of these elements because the idea cannot be expressed without them. Muromura,
2014 WL 4627099 at *3 ("Stripping out, then, the non-protectable natural qualities of ferrofluid,
the only elements that remain are Plaintiffs artistic choices"); see also Bill Diodato, 388 F.
Supp. 2d at 392 (plaintiff cannot claim protection over the "inclusion of fashionable shoes and
underwear" since his idea was "the depiction of a woman's feet as she sits on the toilet, used as a
striking device to highlight fashion accessories").
And, as discussed above, Rentmeester cannot claim ownership of Mr. Jordan's pose.
Indeed, Rentmeester admits that this alleged "grand-jete" pose is a well-known, long-standing
part of the canon of ballet (not his own invention). [See, e.g., Dkt. 1 at 20 (Pose in the
Rentmeester Photo was "a ballet technique known as a grand-jete,'").] Such dance poses are
not copyrightable. See Horgan v. Macmillan, Inc., 789 F.2d 157, 161 (2d Cir. 1986)("Social
dance steps and simple routines are not copyrightable
. [including] the second position of
classical ballet."); U.S. Copyright Office, Compendium of U.S. Copyright Office Practices
805.5(A) (3d ed. 2014) ("Individual movements or dance steps by themselves are not
copyrightable . . . for the same reason that individual words, numbers, notes, colors, or shapes
are not protected by the copyright law.").
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Rentmeester cannot claim copyright in the idea of using this pose with Mr. Jordan or any
other person. Reece, 468 F. Supp. 2d at 1206, n.14 ("pin cases involving photographs, a
`plaintiff s copyrights cannot monopolize the various poses used,' and can only protect
[p]laintiffs particular photographic expression of these poses.'"); see also Bill Diodato, 388 F.
Supp. 2d at 393 (same). At most, Rentmeester may only claim protection of his particular
expression of this well-known pose, which in this instance, resides exclusively in the four
corners of his 1984 photograph. Mestre, 2005 WL 1959295, at *6 ("[I]t is the expression of
ideas that receives protection and not the ideas themselves . ... Similarities derived from the use
ofcommon ideas cannot be protected.").
B.
The Nike Photo Is Not Objectively Similar to the Rentmeester Photo.
After filtering out the unprotectable components discussed above and bearing in mind the
"thin" protection entitled to photographs of the same subject, a side-by-side review of these two
photographs demonstrates the numerous objective differences. These differences are even more
striking when reviewing the full-size copies of the photographs, which have been provided to
this Court as Exhibits A and B to the Cendali Declaration.
The differences between the photographs include at least the following:
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Differences in the Mood: The moods expressed in the photographs are very different.
On the one hand, the Rentmeester Photo, taken in 1984 when Mr. Jordan was still a college
player preparing for the Olympics [id. 19], creates the mood of a young athlete striving (but not
guaranteed) to achieve a goali.e. winning an Olympic medal. This mood is expressed by
depicting Mr. Jordan as very small in relation to the photo, isolated in a deserted field with the
basketball hoop towering almost impossibly high above him and far in the distance. In the
Rentmeester Photo, Mr. Jordan looks like he is moving forward in space, trying with all his
might to reach the basket. Even the bend in Mr. Jordan's right arm gives the feeling of struggle,
as if he is using every muscle in his body to propel himself. The viewer is left to wonder if the
subject will ever reach the basket.
The Nike Photo presents an entirely different story. Taken after Mr. Jordan signed with
the Chicago Bulls, the Michael Jordan figure in this photo has attained a goalhe has arrived in
Chicago to begin his promising professional career. In this picture, Michael Jordan soars
triumphantly, almost effortlessly, over the skyline of Chicago. He appears to be jumping up
vertically from the ground. Graceful, his left arm extends above the nearby basket and his right
arm extends to his side in sharp, straight lines, with his legs forming a perfect "V" shape that
accentuates his flight over Chicago. The Michael Jordan in this photograph has arrived, and the
viewer knows that he will dunk that ball.
Differences in the Appearance of Mr.Jordan: There are also significant differences in
the physical appearance of Mr. Jordan in the Rentmeester Photo and Nike Photo, including:
Different Clothing:
The Nike Photo depicts Mr. Jordan in a manner that
accentuates the Nike shoes and apparel he is wearing in the distinctive red and black of
the Chicago Bullsin keeping with the overall theme of Mr. Jordan's arrival in Chicago.
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On the other hand, the Rentmeester Photo depicts Mr. Jordan in dark clothing with only
vague hints of color and featuring the words "USA" and "United States." See Kaplan,
133 F. Supp. 2d at 325 (finding no infringement no infringement as a matter of law
where, inter alia, the respective photographs depicted subjects wearing "similar attire"
that was "different in color"). Mr. Jordan's clothing in the Nike Photo is also much more
tightly fitted, accentuating his form in a way the more baggy clothing in the Rentmeester
Photo does not. On balance, the Nike Photo utilizes clothing to emphasize fashion, while
the Rentmeester Photo's employs clothing (namely Mr. Jordan's loose-fitting sweat suit)
solely in a utilitarian manner.
Different Placement and Scale: The Rentmeester Photo places Mr. Jordan in the
left side of the frame and shows him as very small in relation to the overall photograph
and the basketball hoop. In contrast, the Nike Photo places Mr. Jordan dead center,
completely dominating the shot. In addition, the Nike Photo zooms in on Mr. Jordan and
he looks much bigger in relation to the basketball hoop.
Differences in Mr. Jordan's Stance:
While poses, like the one in the Rentmeester
Photo, are generally not copyrightable as discussed above, there are significant differences
between the expression of Mr. Jordan's stance in the photographs, as illustrated by the side-byside close ups shown below:
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Position of Arms/Hands: In the Rentmeester Photo, Mr. Jordan's right arm is

bent at the elbow, with his hand at shoulder height aiming upward towards the basket. In
the Nike Photo, Mr. Jordan's right arm is extending straight down and away from the
basket, and his hand points toward the ground. Further, in the Rentmeester Photo,
Mr. Jordan's left arm is bent slightly backwards while in the Nike Photo it is fully
extended and is depicted above the basket.
Position of Legs/Feet: The positioning of Mr. Jordan's legs and feet also appear
very differently in these respective photographs. In the Rentmeester Photo, Mr. Jordan's
legs are positioned in the stance of someone jumping while running forward. His legs are
apart like a "scissor" split, and his back foot is visible from the side. 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 while doing so. The top of
his right foot is visible.
Differences in the Setting and Background:
The Rentmeester Photo depicts "a
relatively isolated knoll" [Dkt. 1 at 21], a rural setting, which includes an image of a skeletal,
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leafless tree on the left side of the frame, a grassy surface, and additional foliage in the
background. In contrast, the Nike Photo depicts an urban background, namely the Chicago
skyline, with no trees, grass or foliage. Harney, 704 F.3d at 188 (differences in backgrounds of
respective photos precluded a finding ofinfringement).
Differences in the Color of the Sky: In the Rentmeester Photo, the sky is depicted in
cool colors of blue, grey white, and black, while the Nike Photo depicts the sky in wai n colors
of deep purple and red. Kaplan, 113 F. Supp. 2d at 327 ("[D]ifferences in lighting, shading, and
color cause the photographs to convey contrasting 'feels' or `moods.'"); Reece, 468 F. Supp. 2d
at 1208 (no likelihood of success on copyright infringement where "the sepia tone of the
photograph is markedly contrasted by the vibrant colors [in] the [infringing work]").
Differences in the Lighting, Shadows, and Depiction of the Sun: In the Rentmeester
Photo, the sun shines brightly (almost blindingly) and appears as one of the central features of
the photograph, emphasizing the shadows over Mr. Jordan's face and figure. In contrast, the
Nike Photo is set at dusk with the sun completely absent from the frame.
Differences in the Appearance of the Basketball Hoops: In the Rentmeester Photo, the
basketball, hoop appears in its entirety. It has one post and appears perfectly vertical and with
seemingly exaggerated height. In the Nike Photo, only part of the basketball hoop appears. It
has two posts and appears to be slanted and ofregular height.
For at least these reasons, the Rentmeester Photo and Nike Photo are not objectively
similar and Rentmeester cannot state a claim for infringement based on the Nike Photo.
Rentmeester's self-serving descriptions of the Rentmeester Photo and Nike Photo cannot alter
this result. See, e.g., Erickson, 839 F. Supp. 2d at 1140 (plaintiff cannot escape a motion to
dismiss by "asserting similarities at a high level of generality"); see also Gordon, 2011 WL 2011
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WL 3648606 at *4 ("[S]imply assigning creative adjectives to features of a photograph cannot

manufacture substantial similarity where none exists'); see also Peter F. Gaito Architecture LLC
v. Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir. 2010)("In copyright infringement actions, the
works themselves supersede and control [over] contrary descriptions of them")(internal citations
and quotations omitted). Rentmeester's claim for infringement as to the Nike Photo must be
dismissed. See Gordon, 2011 WL 3648606 at *3 (finding that "the dictates of good eyes and
common sense lead inexorably to the conclusion that there is no substantial similarity between
Plaintiff's works and the allegedly infringing compositions" and thus granting motion to
dismiss).
C.
The Jumpman Logo Is Not Objectively Similar to the Rentmeester Photo.
The question of substantial similarity between the Jumpman Logo and the Rentmeester
Photo is easily resolved, because the Jumpman Logo looks even more different from the
Rentmeester Photo than the Nike Photo. Accordingly, Rentmeester cannot state a claim for
copyright infringement with respect to the Jumpman Logo either.8
As an initial matter, while Rentmeester misleadingly includes a black silhouette based on
his Rentmeester Photo in the complaint [Dkt. 1 41], he does not allege that he ever created a
comparable "silhouette logo" to Jumpman Logo that was accessed or copied by Nike.
Rentmeester's after-the-fact image, created apparently just for purposes of this lawsuit, is
irrelevant. See, e.g., Gordon, 2011 WL 3648606 at *4 (plaintiffs cannot "manipulate the
8
Rentmeester pleads correctly that Nike has incontestable trademark registrations covering
variations on the Jumpman Logo [Dkt. 1 at 50], and that he has been well aware of these
logos (and the tremendous goodwill Nike has built around the Jumpman Logo) since it was
first used in commerce in 1987. [Id. at 40.] Nowhere, however, does Rentmeester allege
that he ever objected to these trademark registrations or otherwise provided any indication to
Nike that these trademarks allegedly infringed his purported copyrights.
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comparison" between two works by "alter[ing] the images at issue in order to bolster [their]
infringement claims"). The correct comparison here is between the Rentmeester Photo and the
Jumpman Logo:
[Dkt. 1
TT 26, 41.]
The objective differences between these works are striking. The Rentmeester Photo has
numerous elements that are simply not present in the Jumpman Logo. For example, in the
Jumpman Logounlike in the Rentmeester Photothere is no background, no setting, no color,
no basketball hoop, no ground, no foliage, and no sun. The Jumpman Logo is a black silhouette
of a basketball playernothing else.
Rentmeester alleges that the person depicted and pose of the Jumpman Logo is the same
as the figure in the Rentmeester Photo. [Dkt. 1 42.] But as discussed above, Rentmeester
cannot copyright Michael Jordan or his alleged "grand-jete" pose. Moreover, the expression of
the figures in the Jumpman Logo and Rentmeester Photo are not similar:
The Jumpman Logo consists of a stylized, solid black figure. In contrast, in the
Rentmeester Photo, Mr. Jordan appears realistic and the colors and contours of his
clothes and features are shown.
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Mr. Jordan's legs in the Jumpman Logo are straight and unbent, forming a distinctive
"V" shape that creates the distinct impression of flight; while the Rentmeester Photo
pose depicts the legs in a largely straight line with the right leg bent slightly at the
knee creating a feeling of horizontal rather than vertical motion.
In the Jumpman Logo, Mr. Jordan's arms are depicted in a straight line, the right arm
pointed down and slightly out with an open palm and the left arm aimed upward with
the ball resting flat on Jordan's left hand. In the Rentmeester Photo, Mr. Jordan's
right arm is bent at a hard angle with his hand pointed upwards and his left arm is
bent slightly back with the ball appearing to be in the process ofleaving his hand.
For at least these reasons, the Jumpman Logo and the Rentmeester Photo are nowhere close to
being substantially similar and a claim for copyright infringement cannot stand.
V.
RENTMEESTER CANNOT STATE A CLAIM FOR INDIRECT COPYRIGHT

INFRINGEMENT.
Rentmeester's claims for indirect copyright infringement are easily disposed of because
each of those claims requires an underlying act of direct infringement, which Rentmeester cannot
show. See, e.g., Perfect 10 v. Visa Intl Serv. Assoc., 494 F.2d 788, 795, 802(9th Cir. 2007). As
discussed above, Rentmeester cannot state a claim for copyright infringement and thus his
indirect infringement claims should also be dismissed.
VI.
RENTMEESTER CANNOT STATE A CLAIM UNDER THE DMCA.

Rentmeester's claim under the CMI provision of the DMCA is both legally unsupportable
and inadequately plead. 17 U.S.C. 1202.

As an initial matter, Rentmeester cannot state a claim under the DMCA without an
underlying act of infringement which, as explained above, he cannot show. Section 1202(a) only
prohibits the provision of CMI that is "false"since the Nike Photo and Jumpman Logo are
original, protectable, non-infringing
protection over those works. Id.
works, Nike cannot be faulted for claiming copyright

Regardless, Rentmeester's DMCA claim fails for three
additional reasons.
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First, Rentmeester cannot seek relief based on alleged removal of CMI that occurred
fifteen years before the DMCA made such removal unlawful. A statute has no retroactive effect
absent clear congressional intent, see, e.g., Landgraf v. USI Film Prods., 511 U.S. 244, 280
(1994), and when the DMCA became effective in 1998 it did not expressly command retroactive
application. Rentmeester alleges that Nike created the Nike Photo in 1984, and the Jumpman
Logo in 1987more than a decade before the DMCA took effect. [Dkt. 1 IN 4-5, 40.] Because
any purported removal or alteration of CMI by Nike as to the Nike Photo, Jumpman Logo, or
Rentmeester Photo predated the DMCA by many years, Rentmeester cannot state a claim under
the DMCA. See Hughes Aircraft Co. v. U.S. ex rel. Schumer, 520 U.S. 939, 948-49 (1997)
(denying retroactive effect of a statute that created a new cause of action for private citizens);
Rivas v. Rail Delivery Serv., Inc., 423 F.3d 1079, 1084 (9th Cir. 2005) (holding that
"retroactively expanding the universe of potential plaintiffs would have an impermissible
retroactive effect" because this "would increase Defendants' potential liability"); United States
ex rel. Anderson v. Northern Telecom, Inc., 52 F.3d 810, 814 (9th Cir. 1995) ("[If] the law
changes the legal consequences of conduct that takes place after the law goes into effect, the law
operates on that conduct prospectively."); see also Goldman v. Healthcare Mgmt. Sys., Inc., 559
F. Supp. 2d 853, 867(W.D. Mich. 2008)("The parties agreed at the pretrial conference that the.
DMCA does not authorize recovery for any claims prior to its enactment.").
Second, Rentmeester fails to meet the stringent pleading requirements of Twombly and
Iqbal because he does not specifically allege facts that make plausible his allegation that CMI
was present on the copies of the Rentmeester Photo that he claims Nike used, or that Nike
removed or altered such information. While the Court must accept as true all well-pleaded
factual allegations, it is black letter law that Rentmeester's Complaint "must include sufficient
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factual natter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal,
556 U.S. at 678 (quoting Twombly, 550 U.S. at 570)(emphasis added). Pleadings that offer mere
"labels and conclusions" or "formulaic recitation" of the elements of an action "will not do." Id.
(quoting Twombly, 550 U.S. at 555).
Here, the Complaint makes only a conclusory allegations that "several forms of
`copyright management information' ... were conveyed in connection
with ... the
[Rentmeester] Photo," and a bare recitation of the types of CMI enumerated in Section 1202(c)
and the kinds of conduct actionable under 1202(b). [Dkt. 1
in 77-78.]
That is not enough.
Rentmeester fails to allege with specificity what CMI Nike removed or altered, or the works
from which the CMI was removed or altered. The only allegation about identifying information
is the descriptive text in the LIFE magazine photo essay describing Rentmeester's endeavor and
giving him credit, or Rentmeester's invoices from 1984 and 1987.
[Dkt. 1 TR 3, 27.]
Rentmeester does not allege that Nike removed any of this information in order to create the
Nike Photo or the Jumpman Logo or included altered CMI on the same.
Third, Rentmeester's fails to allege a nexus to the Internet or digital piracy, which is
required for DMCA claims. See, e.g., United States v. Elcom, Ltd., 203 F. Supp. 2d 1111, 1129
(N.D. Cal. 2002) (DMCA reflected Congress's belief "that a primary threat to electronic
commerce and to the rights of copyright holders was the plague of digital piracy"). Courts in this
Circuit and elsewhere hold that a plaintiff alleging a violation of the DMCA must show some
nexus between the claimed misconduct and the underlying purposes of the DMCA. If a plaintiff
does "not allege any facts linking [Defendant's] conduct to the Internet, electronic commerce, or
any other purpose for which the DMCA was enacted," the plaintiff "has not alleged facts
sufficient to state a claim for a violation of either Section 1202(a) or 1202(b)[of the DMCA]."
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Brown v. Stroud, C-08-02348, 2011 WL 2600661, at *6 (N.D. Cal. June 30, 2011).9 In Brown,
the court noted that even those decisions declining to adopt this strict application of the DMCA
nevertheless involved cases with "underlying facts [that] have some connection to the Internet or
electronic commerce." Id. at *5 n.6.1
Here, as to the Nike Photo, Rentmeester only alleges that Nike published it on billboards
and in print. [Dkt. 1
TT 39.]
There is no discernible nexus between that alleged conduct and the
Internet or e-commerce. As to the Jumpman Logo, Rentmeester solely alleges, in passing, that
See also id. at *5 ("[I]n order to state a claim [under the DMCA], a plaintiff must allege facts
showing that the alleged falsification or removal of CMI has some relation to the Internet,
electronic commerce, or the purposes for which the DMCA was enacted."); Textile Secrets
Intern., Inc. v. Ya-Ya Brand, Inc., 524 F. Supp. 2d 1184, 1201 (C.D. Cal. 2007)(DMCA does
not apply "to circumstances that have no relation to the Internet, electronic commerce,
automated copyright protections or management systems, public registers, or other
technological measures or processes as contemplated by the DMCA"); MDY Indus., LLC v.
Blizzard Entm't, Inc., 629 F.3d 928, 942 (9th Cir. 2010)("In enacting the DMCA, Congress
sought to mitigate the problems presented by copyright enforcement in the digital age.").
10
Moreover, many such cases deal expressly with the question of whether CMI claims are
limited to instances where the claimed CMI is placed pursuant to an automated or
technological process, as opposed to a manual application, such as typing a copyright symbol
on a webpage. Such cases all still arise in the context of Internet or electronic uses. See
Agence France Presse v. Morel, 769 F. Supp. 2d 295, 305-06 (S.D.N.Y. Jan. 14, 2011)
(declining to limit definition of CMI to notices placed on works through technological
processes, when photographer attached identifying information to photos on his webpage and
defendants allegedly downloaded and distributed photographs without attribution); Cable v.
Agence France Presse, 728 F. Supp. 2d 977, 978-79 (N.D. Ill. 2010) (rejecting
"technological processes" limitation, holding that plaintiff's manually coded copyright notice
and hyperlink on webpage constituted CMI); Fox v. Hildebrand, 2009 WL 1977996, at *1,
*3 n.3 (C.D. Cal. July 1, 2009)(permitting DMCA claim to proceed where plaintiff alleged
that defendant removed handwritten CMI related to architectural plans, replaced it with a
falsified electronic copyright notice, and published it on their website); but see Murphy v.
Millennium Radio Grp. LLC,650 F.3d 295, 305 (3d Cir. 2011)(holding that "gutter credit"
in print magazine constitutes CMI). Murphy, however, still involved a significant nexus with
the Internet because the defendant posted plaintiffs image on two websites without the gutter
credit. Id. at 305.
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some Nike products sold via "internet websites" bear the Jumpman Logo. [Id. 53.] This is
simply not enough to sustain a claim under the DMCA.
Thus, Rentmeester's DMCA claim must be dismissed.
VII.
RENTMEESTER CANNOT STATE A CLAIM FOR CERTAIN DAMAGES.

Rentmeester cannot state a claim for copyright infringement or a violation of the DMCA,
and consequently is not entitled to any damages. In addition, as discussed below, this Court
must dismiss Rentmeester's claims for (1)statutory damages and attorneys' fees for copyright
infringement,(2) actual damages and profits prior to January 22, 2012, and (3) punitive damages.
A.
Rentmeester Is Not Entitled to Statutory Damages or Attorneys' Fees for

Copyright Infringement.
In his Complaint, Rentmeester seeks an award of statutory damages and attorney's fees
under sections 504 and 505 of the Copyright Act. [Dkt. 1 at IX(3),(5).] As a matter of law,
however, Rentmeester is entitled to neither statutory damages nor a fee award because he did not
obtain a copyright registration for the Rentmeester Photo until after it was first published and
Nike commenced its alleged infringement. The Copyright Act bars plaintiffs from recovering
statutory damages and attorney's fees for infringement of unpublished and published works if
they have not been registered within a prescribed time. Specifically, section 412 provides:
... no award of statutory damages or of attorney's fees, as
provided by sections 504 and 505, shall be made for
.. . (2) any infringement of copyright commenced after first
publication of the work and before the effective date of its
registration, unless such registration is made within three months
after the first publication ofthe work.
17 U.S.C. 412; see also Oddo v. Ries, 743 F.2d 630, 634 (9th Cir. 1984)(reversing statutory
damages and fee award and holding that Section 412 bars plaintiff from recovering such for
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infringement of copyrights in magazine articles, because plaintiff failed to show that the
copyrights "have ever been registered, much less within three months of their publication.").
Here, Rentmeester alleges that the Rentmeester Photo was first published in LIFE in the
summer of 1984. [Dkt. 1 2.] Rentmeester admits that he did not obtain a copyright registration
for the Rentmeester Photo until December 18, 2014over 30 years after its first publication.
[Id. 29.] Rentmeester also alleges that, in August 1984, "[a]fter LIFE Magazine published the
[Rentmeester] Photo, Nike sought a copy" [id. 4] and then infringed it by (1) copying the
Rentmeester Photo and making the Nike Photo sometime between August 1984 and February
1985 [id. 34];(2)reproducing the Nike Photo in advertisements after 1985 [id. 36, 39]; and
(3)using the Jumpman Logo beginning in 1987 [id. 40].
Accordingly, because Rentmeester did not obtain a registration for the Rentmeester Photo
within three months of first publication, and Nike's alleged infringement commenced
after publication and before registration, Rentmeester's claims for statutory damages and
attorney's fees under sections 504 and 505 of the Copyright Act should be dismissed. See Hunt
v. Everitt, 91 F. App'x 584, 585 (9th Cir. 2004)("Because any infringement commenced before
11
Hunt registered his copyright, 412 precludes [attorneys'] fees from being awarded to Hunt.").
11
See also Carranza v. Universal Music Grp., Inc., 536 F. App'x 734 (9th Cir. 2013)
(affirming district court's limitation ofrecovery to actual damages and the defendants' profits
because plaintiff's work was not registered before infringement commenced or within three
months of first publication); Derek Andrew, Inc. v. PoofApparel Corp., 528 F.3d 696, 702
(9th Cir. 2008) (precluding recovery of attorneys' fees and statutory damages under the
Copyright Act because infringement commenced prior to the registration date of the work at
issue); Precision Automation, Inc. v. Tech. Servs., Inc., 628 F. Supp. 2d 1244, 1248-49 (D.
Or. 2008)("Because statutory damages are available only when registration is made within
three months of publication, Plaintiffs are not entitled to them."); Fleming v. Miles, 181 F.
Supp. 2d 1143, 1153 (D. Or. 2001) (holding that plaintiff "may not recover statutory
damages or attorney fees even if he prevails on his infringement claims" because all of the
allegedly infringing acts fell "within the scope of[ 412's] prohibition").
Case 3:15-cv-00113-MO
B.
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Rentmeester's Claim for Actual Damages and Profits Prior to January 22,
2012 Is Time Barred.
Rentmeester's Complaint seeks "actual damages and any profits attributable to

infringement of Mr. Rentmeester's copyright, pursuant to 17 U.S.C. 504(b) and 17 U.S.C.
1203(c)(2)."
[Dkt. 1 IX(2).]
According to the Complaint, and as discussed supra,
Rentmeester alleges that Nike's infringement dates back to the 1980s, and such alleged
infringement "has generated substantial revenues for Nike from 1987 to the present." [Dkt. 1
49.]
Rentmeester is not entitled to damages from infringement or removal of CMI that
occurred prior to three years before the filing of his Complaint on January 22,2015.
The statute of limitations on civil actions under the Copyright Act is three years. 17
U.S.C. 507(b). Even in instances of alleged continuing infringement, it is well-settled that a
copyright plaintiff is limited to damages that resulted from infringement that occurred in the
three years prior to the date his suit was filed. See Roley v. New World Pictures, Ltd., 19 F.3d
479, 480-81 (9th Cir. 1994)(reasoning that in a case of continuing copyright infringements, a
copyright plaintiff cannot reach back beyond the three-year limit and sue for damages or other
relief for infringing acts that he knew about at the time but did not pursue); Fahmy v. Jay-Z, 835
F. Supp. 2d 783 (C.D. Cal. 2011) (holding that plaintiff was entitled to damages from any
infringement only within three years prior to the filing of his lawsuit); Watermark Publishers v.
High Tech. Systems Inc., 44 U.S.P.Q.2d 1578 (S.D. Cal. 1997) (same); see also Petrella v.
Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962, 1970 (2014)("Congress provided .. . 507(b)'s
limitations period, which allows plaintiffs during that lengthy term to gain retrospective relief
running only three years back from the date the complaint was filed.").
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Accordingly, Rentmeester's claim for damages and profits for alleged infringement or
removal of CMI that occurred before January 22, 2012 (i.e., three years prior to the date the
Complaint was filed) are time-barred and should be dismissed.
C.
Rentmeester Is Not Entitled to Punitive Damages.
Rentmeester also seeks an award of punitive damages. [Dkt. 1 at IX(9).] Punitive

damages, however, are not available for claims under the Copyright Act. See Saregama India
Ltd. v. Young, 2003 WL 25769784, at *1 (C.D. Cal. Mar. 11, 2003)(granting motion to strike
punitive damages claim because "[p]unitive damages are not available under the Copyright
Act."). See also Oboler v. Goldin, 714 F.2d 211, 213 (2d Cir. 1983); Krisel v. Contempo Homes,
Inc., 2006 WL 5668181, at *3 (C.D. Cal. Sept. 27, 2006); Smith & Hawken, Ltd. v.
Gardendance, Inc., 2004 WL 2496163, at *10 (N.D. Cal. Nov. 5, 2004); Reinicke v. Creative
Empire, LLC, 2013 WL 275900, at *5 (S.D. Cal. Jan. 24, 2013); Design Art v. Nat'l Football
League Properties, Inc., 2000 WL 1919787, at *5 (S.D. Cal. Nov. 27, 2000).
Rentmeester's claim for punitive damages should also be dismissed.
CONCLUSION
For these reasons, Nike respectfully requests that this Court grant its motion to dismiss
Rentmeester's Complaint in its entirety and with prejudice.
Case 3:15-cv-00113-MO
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DATED: March 16, 2015.

TONKON TORP LLP
By /s/ Jon P. Stride

Direct Fax: 503.972.3734
Email: jon.stride@tonkon.com
Direct Fax: 503.972.3882
Email: eric.beach@tonkon.com
By /s/ Dale Cendali

Dale Cendali(pro hac vice)
Fax: 212.446.4900
Email: dale.cendali@kirkland.com
P. Daniel Bond (pro hac vice)
Direct Fax: 312.862.2200
Email: daniel.bond@kirkland.com
Attorneysfor Defendant Nike, Inc.
Case 3:15-cv-00113-MO
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CERTIFICATE OF COMPLIANCE
This brief complies with the applicable word-count limitation under LR 7-2(b), 26-3(b),
54-1(c), or 54-3(e) because it contains 10,966 words, including headings, footnotes, and
quotations, but excluding the caption, table of contents, table of cases and authorities, signature
block, exhibits, and any certificates of counsel.
TONKON TORP LLP

Attorneysfor Defendant Nike, Inc.
PAGE 1 - CERTIFICATE OF COMPLIANCE
Case 3:15-cv-00113-MO
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CERTIFICATE OF SERVICE
I hereby certify that I served the foregoing NIKE'S BRIEF IN SUPPORT OF ITS
MOTION TO DISMISS on:
Eric B. Fastiff(efastiff@lchb.com)
Dean M. Harvey(dharvey@lchb.com)
Katherine C. Lubin (klubin@lchb.com)
Lieff Cabraser Heimann & Bernstein, LLP
275 Battery Street, 19th Floor
San Francisco, CA 94111-3339
Cody Hoesly (choesly@larkinsvacura.com)
Larkins Vacura LLP
121 SW Morrison Street, Suite 700
Portland, OR 97204
Attorneys for Plaintiff Jacobus Rentmeester
by electronic means through the Court's Case Management/Electronic Case

File system on the date set forth below;
~~ by mailing a copy thereof in a sealed, first-class postage prepaid envelope,

addressed to each attorney's last-known address and depositing in the U.S.
mail at Portland, Oregon on the date set forth below;
by concurrently electronically mailing this document in Word format to

each attorney's last-known email address on the date set forth below.

TONKON TORP LLP
Attorneys for Defendant Nike, Inc.
PAGE 1 - CERTIFICATE OF SERVICE

Nike Motion To Dismiss 'Jumpman' Lawsuit

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NIKE'S MOTION TO DISMISS AND SUPPORTING MEMORANDUM

THE STANDARD FOR A MOTION TO DISMISS.

SUBSTANTIAL SIMILARITY IS REQUIRED TO ESTABLISH

SUBSTANTIAL SIMILARITY IN CASES INVOLVING

Photographs of the Same Subject Cannot Be Substantially Similar Unless

There Is No Copyright Infringement If the Only Similarities Between Two

Poses of Subjects Are Generally Not Protected by Copyright.

If No Substantial Similarity Exists, a Photograph Is Not Infringing Even If

RENTMEESTER CANNOT STATE A CLAIM FOR COPYRIGHT

Numerous Components of the Rentmeester Photo Are Unprotectable.

The Nike Photo Is Not Objectively Similar to the Rentmeester Photo

The Jumpman Logo Is Not Objectively Similar to the Rentmeester Photo

RENTMEESTER CANNOT STATE A CLAIM FOR INDIRECT

PAGE i - NIKE'S MOTION TO DISMISS AND SUPPORTING MEMORANDUM

RENTMEESTER CANNOT STATE A CLAIM UNDER THE DMCA.

RENTMEESTER CANNOT STATE A CLAIM FOR CERTAIN

Rentmeester Is Not Entitled to Statutory Damages or Attorneys' Fees for

Rentmeester Is Not Entitled to Punitive Damages

PAGE ii - NIKE'S MOTION TO DISMISS AND SUPPORTING MEMORANDUM

Allen v. Scholastic, Inc.,

Apple Computer, Inc. v. Microsoft Corp.,

Bell Atlantic Corp. v. Twombly,

Bill Diodato Photography, LLC v. Kate Spade, LLC,

Cable v. Agence France Presse,

Campbell v. Walt Disney Co.,

Derek Andrew, Inc. v. PoofApparel Corp.,

Design Art v. Nat'l Football League Properties, Inc.,

DuckHole, Inc. v. NBC Universal Media LLC,

Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc.,

Funky Films, Inc. v. Time Warner Entm't Co., L.P.,

Goldman v. Healthcare Mgmt. Sys., Inc.,

PAGE iv - NIKE'S MOTION TO DISMISS AND SUPPORTING MEMORANDUM

Hughes Aircraft Co. v. U.S. ex rel. Schumer,

Kaplan v. Stock Market Photo Agency, Inc.,

20, 21, 27, 29

Krisel v. Contempo Homes, Inc.,

Landgrafv. USIFilm Prods.,

Lee v. City ofL.A.,

Mannion v. Coors Brewing Co.,

MDY Indus., LLC v. Blizzard Entm't, Inc.,

Mercado Latino, Inc. v. Indio Products, Inc.,

Murphy v. Millennium Radio Grp. LLC,

PAGE v - NIKE'S MOTION TO DISMISS AND SUPPORTING MEMORANDUM

Perfect 10 v. Visa Intl Serv. Assoc.,

Peter F. Gaito Architecture LLC v. Simone Dev. Corp.,

Petrella v. Metro-Goldwyn-Mayer, Inc.,

Precision Automation, Inc. v. Tech. Servs., Inc.,

Reece v. Island Treasures Art Gallery, Inc.,

Reinicke v. Creative Empire, LLC,

Rivas v. Rail Delivery Serv., Inc.,

Roley v. New World Pictures, Ltd.,

Saregama India Ltd. v. Young,

SHL Imaging, Inc. v. Artisan House, Inc.,

Sid & Marty Kroft Tel. Prods., Inc. v. McDonald's Corp.,

Smith & Hawken, Ltd. v. Gardendance, Inc.,

Textile Secrets Intern., Inc. v. Ya-Ya Brand, Inc.,

PAGE vi - NIKE'S MOTION TO DISMISS AND SUPPORTING MEMORANDUM

United States ex rel. Anderson v. Northern Telecom, Inc.,

United States v. Elcom, Ltd.,

Watermark Publishers v. High Tech. Systems Inc.,