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Nike strikes back against Kawhi logo lawsuit

Nike has filed counterclaims against Los Angeles Clippers’ Kawhi Leonard arising out of his claims that the company stole his logo that he wished to use with his current shoe sponsor, New Balance.

Leonard filed a lawsuit last month claiming that Nike had filed a Copyright based on a logo he claims to have made.  Nike argues otherwise.

In a recent court filing, Nike has filed counterclaims against Leonard stating that the company owns the copyright, he is infringing on the copyright and requesting that the Copyright office cancel Leonard’s design.  Nike suggests that he “knew that he did not author the Claw Design, and specifically knew of the Contract’s intellectual property ownership provision. “

The counterclaims cite an interview Leonard did in 2014 in which he stated that he had a ‘rough draft’ of his logo but Jordan Brand refined it and he gave them the ‘credit’ because he was no artist. They also claim that Leonard is attempting to ‘re-write history’ with his claims of creating the design.

The crux of the issue is that Leonard wanted to use the Claw Design for use with his new apparel sponsor, New Balance.  The company capitalized on Leonard’s success this past year when he helped the Toronto Raptors win an NBA Championship.  Since then, Leonard has moved on to the Los Angeles in a blockbuster shift of power in the league as he went to the Clippers along with Paul George.  With his move to Los Angeles, the hub of everything, the marketing for Leonard would be vital assuming that his representatives would want to monetize the situation.

As one might have expected there are two sides to a story and according to Nike, Leonard’s design was not stolen.  In fact, per Nike, the company enhanced a ‘rough draft’ of the drawing.  Can Leonard claim that the idea was originally his built upon by Nike?  Likely, but that does not provide a legal basis for ownership of the claw design.  Leonard may claim that the ‘rough draft’ drawing that Nike has produced was not final and he provided input which could be an argument to the counterclaims.

Once again, this is another reminder that contractual clauses within contracts should be detailed.

Are tattoo depictions in video games protected by copyright or Fair Use?

Tattoos and video games are back in court. “Fair use” may be the key.

Slightly over a year ago, the Second Circuit dismissed a portion of a lawsuit brought by Solid Oak Sketches against 2K Games and Take-Two Interactive.

Solid Oak alleges copyright infringement stemming from makers of the NBA 2K video game using images of tattoos of NBA players in the video game. The video game maker claims the defense of Fair Use.

The elements of Fair Use are described in this post.

The 4 factors to show Fair Use are:

1. The purpose and character of the use, including whether such use is a commercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.

Essentially, the argument is that the copying of the copyrighted material is “de minimis” since Solid Oak is not suing over all the tattoos in the case.

Notably, the Plaintiff in this case filed copyright registrations for the exclusive license of tattoos of certain players within the video game which makes the lawsuit and claims a little curious. One might see this as a forward-thinking strategy to protect those tattoo artists. Others might see it as a form of trolling to induce these types of lawsuits.

Solid Oak notes that it is not asking for those NBA players with tattoos to seek permission every time to go into public but when “corporate entities that purposefully seek to commercially benefit from the use of the Tattoos be held accountable for their actions and pay a royalty to the rightful owner of the intellectual property.”

It dismisses the video game maker’s argument for Fair Use since it claims that the players depicted are prominently featured, used in its entirety, the purpose for the use for the tattoo images is commercial in nature and affects the market for the copyrighted work. Solid Oak also argues against the de minimis argument of 2K Games as well.

Since this case is at the initial pleadings stage, Solid Oak is requesting further discovery prior to a decision on the pleadings. We will continue to follow this interesting case as the decision will address issues of the Fair Use defense.

Nike and Photographer argue over Jumpman Logo in Copyright lawsuit

The Jumpman logo made famous by Nike depicting Michael Jordan, split-legged, about to dunk a basketball with one hand with a city skyline in the background, was at issue before the Ninth Circuit earlier this week as a copyright fight over the photo continues.

Jacobus Rentmeester, the photographer, claims that the Jumpman logo is an unauthorized derivative work copying the central creative elements of the photograph “conceived, orchestrated and created,” for a 1984 issue of LIFE Magazine for the Summer Olympics.

Nike moved to dismiss the lawsuit with the district court granting it motion and thus the Ninth Circuit appeal.  Rentmeester cited numerous deficiencies in the district court’s decision including the fact that he was entitled only to “thin” copyright protection despite being an original work of visual art.

In the Jumpman logo appeal, it appears that the main question is one of differences and whether the photographer can show that the phot was infringed.  The appellate court questioned what other differences were there aside from the pose.  Judge Marsha Berzon questioned whether the pose is protected because it’s unusual.  Rentmeester’s attorneys argue it is protected because he had directed the shot of Jordan.  Nike argued that siding with this viewpoint would be a “radical expansion of copyright law.”

Interesting enough, Judge John Owens asked about a hypothetical situation in which new Los Angeles Lakers first round pick Lonzo Ball were to use a similar pose dunking over the city skyline to promote him as “the next Michael Jordan” and whether that would be protected by copyright.  Nike’s attorney responded by indicating the creative use of the Chicago skyline made its rendering distinct.

Ironically, Nike is opposing a trademark filing by one of its own sponsored athletes, New England Patriots Tight End Rob Gronkowsi, citing a logo he would like to use is too similar to the Jumpman logo.