                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


JACOBUS RENTMEESTER,                      No. 15-35509
            Plaintiff-Appellant,
                                         D.C. No.
               v.                   3:15-cv-00113-MO

NIKE, INC., an Oregon
corporation,                               OPINION
              Defendant-Appellee.


     Appeal from the United States District Court
              for the District of Oregon
  Michael W. Mosman, Chief District Judge, Presiding

          Argued and Submitted July 11, 2017
                  Portland, Oregon

                Filed February 27, 2018

      Before: Marsha S. Berzon, Paul J. Watford,
          and John B. Owens, Circuit Judges.

              Opinion by Judge Watford;
Partial Concurrence and Partial Dissent by Judge Owens
2                     RENTMEESTER V. NIKE

                            SUMMARY*


                              Copyright

   The panel affirmed the district court’s dismissal of a
copyright infringement action brought by photographer
Jacobus Rentmeester against Nike, Inc.

     Rentmeester alleged that Nike infringed his copyright in
a photograph of Michael Jordan when it commissioned its
own photograph of Jordan and then used that photo to create
its “Jumpman” logo.

    The panel held that Rentmeester plausibly alleged the first
element of his copyright claim—that he owned a valid
copyright in his photo. He also plausibly alleged the
“copying” component of the second element because Nike’s
access to Rentmeester’s photo, combined with the obvious
conceptual similarities between the two photos, was sufficient
to create a presumption that the Nike photo was the product
of copying rather than independent creation.

    Rentmeester did not, however, plausibly allege that Nike
copied enough of the protected expression from his photo to
establish unlawful appropriation. The panel held that
Rentmeester could not copyright the pose in the photograph,
and he was entitled to protection only for the way the pose
was expressed, including the camera angle, timing, and
shutter speed he chose. The panel explained that a
photographer’s copyright is limited to the particular selection

    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                  RENTMEESTER V. NIKE                      3

and arrangement of the elements expressed in the copyrighted
image. The panel held that Rentmeester’s photo was entitled
to broad rather than thin protection because the range of
creative choices open to him in producing the photo was
exceptionally broad. Nonetheless, Rentmeester did not
plausibly allege that his photo and the Nike photo were
substantially similar under the extrinsic test because there
were differences in selection and arrangement of elements, as
reflected in the photos’ objective details. The panel
concluded that, therefore, the Jumpman logo also was not
substantially similar to Rentmeester’s photo.

    Concurring in part and dissenting in part, Judge Owens
agreed with most of the majority’s analysis, and with its
holding that Rentmeester could not prevail on his Jumpman
logo copyright infringement claim. Judge Owens disagreed
with the majority’s conclusion as to the Nike photo on the
basis that questions of substantial similarity are inherently
factual and should not have been resolved at the dismissal
stage.


                        COUNSEL

Dean M. Harvey (argued), Katherine C. Lubin, and Eric B.
Fastiff, Lieff Cabraser Heimann & Bernstein LLP, San
Francisco, California; Cody Hoesly, Larkins Vacura LLP,
Portland, Oregon; for Plaintiff-Appellant.

Dale Cendali (argued), Johanna Schmitt, and P. Daniel Bond,
Kirkland & Ellis LLP, New York, New York; Jon Stride,
Tonkon Torp LLP, Portland, Oregon; for Defendant-
Appellee.
4                  RENTMEESTER V. NIKE

                         OPINION

WATFORD, Circuit Judge:

    This is a copyright infringement action brought by the
renowned photographer Jacobus Rentmeester against Nike,
Inc. The case involves a famous photograph Rentmeester
took in 1984 of Michael Jordan, who at the time was a
student at the University of North Carolina. The photo
originally appeared in Life magazine as part of a photo essay
featuring American athletes who would soon be competing in
the 1984 Summer Olympic Games. We are asked to decide
whether Nike infringed Rentmeester’s copyright when it
commissioned its own photograph of Jordan and then used
that photo to create one of its most iconic trademarks.

                              I

    The allegations in Rentmeester’s complaint, which we
accept as true at this stage of the proceedings, establish the
following. Rentmeester’s photograph of Jordan, reproduced
in the Appendix, is highly original. It depicts Jordan leaping
toward a basketball hoop with a basketball raised above his
head in his left hand, as though he is attempting to dunk the
ball. The setting for the photo is not a basketball court, as
one would expect in a shot of this sort. Instead, Rentmeester
chose to take the photo on an isolated grassy knoll on the
University of North Carolina campus. He brought in a
basketball hoop and backboard mounted on a tall pole, which
he planted in the ground to position the hoop exactly where
he wanted. Whether due to the height of the pole or its
placement within the image, the basketball hoop appears to
tower above Jordan, beyond his reach.
                   RENTMEESTER V. NIKE                        5

    Rentmeester instructed Jordan on the precise pose he
wanted Jordan to assume. It was an unusual pose for a
basketball player to adopt, one inspired by ballet’s grand jeté,
in which a dancer leaps with legs extended, one foot forward
and the other back. Rentmeester positioned the camera below
Jordan and snapped the photo at the peak of his jump so that
the viewer looks up at Jordan’s soaring figure silhouetted
against a cloudless blue sky. Rentmeester used powerful
strobe lights and a fast shutter speed to capture a sharp image
of Jordan contrasted against the sky, even though the sun is
shining directly into the camera lens from the lower right-
hand corner of the shot.

    Not long after Rentmeester’s photograph appeared in Life
magazine, Nike contacted him and asked to borrow color
transparencies of the photo. Rentmeester provided Nike with
two color transparencies for $150 under a limited license
authorizing Nike to use the transparencies “for slide
presentation only.” It is unclear from the complaint what
kind of slide presentation Nike may have been preparing, but
the company was then beginning its lucrative partnership with
Jordan by promoting the Air Jordan brand of athletic shoes.

     In late 1984 or early 1985, Nike hired a photographer to
produce its own photograph of Jordan, one obviously inspired
by Rentmeester’s. In the Nike photo, Jordan is again shown
leaping toward a basketball hoop with a basketball held in his
left hand above his head, as though he is about to dunk the
ball. See Appendix. The photo was taken outdoors and from
a similar angle as in Rentmeester’s photo, so that the viewer
looks up at Jordan’s figure silhouetted against the sky. In the
Nike photo, though, it is the city of Chicago’s skyline that
appears in the background, a nod to the fact that by then
Jordan was playing professionally for the Chicago Bulls.
6                   RENTMEESTER V. NIKE

Jordan wears apparel reflecting the colors of his new team,
and he is of course wearing a pair of Nike shoes. Nike used
this photo on posters and billboards as part of its marketing
campaign for the new Air Jordan brand.

    When Rentmeester saw the Nike photo, he threatened to
sue Nike for breach of the limited license governing use of
his color transparencies. To head off litigation, Nike entered
into a new agreement with Rentmeester in March 1985, under
which the company agreed to pay $15,000 for the right to
continue using the Nike photo on posters and billboards in
North America for a period of two years. Rentmeester
alleges that Nike continued to use the photo well beyond that
period.

    In 1987, Nike created its iconic “Jumpman” logo, a solid
black silhouette that tracks the outline of Jordan’s figure as it
appears in the Nike photo. See Appendix. Over the past
three decades, Nike has used the Jumpman logo in connection
with the sale and marketing of billions of dollars of
merchandise. It has become one of Nike’s most recognizable
trademarks.

    Rentmeester filed this action in January 2015. He alleges
that both the Nike photo and the Jumpman logo infringe the
copyright in his 1984 photo of Jordan. His complaint asserts
claims for direct, vicarious, and contributory infringement, as
well as a claim for violation of the Digital Millennium
Copyright Act, 17 U.S.C. § 1202. Rentmeester seeks
damages only for acts of infringement occurring within the
Copyright Act’s three-year limitations period (January 2012
to the present). Doing so avoids the defense of laches that
would otherwise arise from his 30-year delay in bringing suit.
                  RENTMEESTER V. NIKE                      7

See Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962,
1970 (2014).

    The district court granted Nike’s motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6). The court
dismissed Rentmeester’s claims with prejudice after
concluding that neither the Nike photo nor the Jumpman logo
infringe Rentmeester’s copyright as a matter of law. We
review that legal determination de novo.

                             II

    To state a claim for copyright infringement, Rentmeester
must plausibly allege two things: (1) that he owns a valid
copyright in his photograph of Jordan, and (2) that Nike
copied protected aspects of the photo’s expression. See Feist
Publications, Inc. v. Rural Telephone Service Co., 499 U.S.
340, 361 (1991); Shaw v. Lindheim, 919 F.2d 1353, 1356 (9th
Cir. 1990).

    Although our cases have not always made this point
explicit, the second element has two distinct components:
“copying” and “unlawful appropriation.” Sid & Marty Krofft
Television Productions, Inc. v. McDonald’s Corp., 562 F.2d
1157, 1164–65 (9th Cir. 1977); Arnstein v. Porter, 154 F.2d
464, 468 (2d Cir. 1946); 4 Melville B. Nimmer & David
Nimmer, Nimmer on Copyright § 13.01[B] (2017). Proof of
copying by the defendant is necessary because independent
creation is a complete defense to copyright infringement. No
matter how similar the plaintiff’s and the defendant’s works
are, if the defendant created his independently, without
knowledge of or exposure to the plaintiff’s work, the
defendant is not liable for infringement. See Feist, 499 U.S.
at 345–46. Proof of unlawful appropriation—that is, illicit
8                  RENTMEESTER V. NIKE

copying—is necessary because copyright law does not forbid
all copying. The Copyright Act provides that copyright
protection does not “extend to any idea, procedure, process,
system, method of operation, concept, principle, or discovery,
regardless of the form in which it is described, explained,
illustrated, or embodied in [the copyrighted] work.”
17 U.S.C. § 102(b). Thus, a defendant incurs no liability if he
copies only the “ideas” or “concepts” used in the plaintiff’s
work. To infringe, the defendant must also copy enough of
the plaintiff’s expression of those ideas or concepts to render
the two works “substantially similar.” Mattel, Inc. v. MGA
Entertainment, Inc., 616 F.3d 904, 913–14 (9th Cir. 2010).

    When the plaintiff lacks direct evidence of copying, he
can attempt to prove it circumstantially by showing that the
defendant had access to the plaintiff’s work and that the two
works share similarities probative of copying. See Baxter v.
MCA, Inc., 812 F.2d 421, 423 (9th Cir. 1987); 4 Nimmer on
Copyright § 13.01[B]. Such proof creates a presumption of
copying, which the defendant can then attempt to rebut by
proving independent creation. Three Boys Music Corp. v.
Bolton, 212 F.3d 477, 486 (9th Cir. 2000).

    Unfortunately, we have used the same term—“substantial
similarity”—to describe both the degree of similarity relevant
to proof of copying and the degree of similarity necessary to
establish unlawful appropriation. The term means different
things in those two contexts. To prove copying, the
similarities between the two works need not be extensive, and
they need not involve protected elements of the plaintiff’s
work. They just need to be similarities one would not expect
to arise if the two works had been created independently.
Laureyssens v. Idea Group, Inc., 964 F.2d 131, 140 (2d Cir.
1992); 4 Nimmer on Copyright § 13.01[B]. To prove
                       RENTMEESTER V. NIKE                               9

unlawful appropriation, on the other hand, the similarities
between the two works must be “substantial” and they must
involve protected elements of the plaintiff’s work.
Laureyssens, 964 F.2d at 140.1

    In this case, Rentmeester has plausibly alleged the first
element of his infringement claim—that he owns a valid
copyright. The complaint asserts that he has been the sole
owner of the copyright in his photo since its creation in 1984.
And the photo obviously qualifies as an “original work of
authorship,” given the creative choices Rentmeester made in
composing it. See 17 U.S.C. § 102(a)(5); Burrow-Giles
Lithographic Co. v. Sarony, 111 U.S. 53, 60 (1884).
Rentmeester alleges that he registered his photo with the
Copyright Office in 2014, which permits him to bring this
suit. 17 U.S.C. § 411(a).

    Rentmeester has also plausibly alleged the “copying”
component of the second element. He alleges that he
provided color transparencies of his photo to Nike’s creative
director shortly before production of the Nike photo. That
allegation establishes that Nike had access to Rentmeester’s
photo, which in this context means a reasonable opportunity
to view it. L.A. Printex Industries, Inc. v. Aeropostale, Inc.,
676 F.3d 841, 846 (9th Cir. 2012). Nike’s access to
Rentmeester’s photo, combined with the obvious conceptual
similarities between the two photos, is sufficient to create a

    1
       To avoid the confusion that arises from using the same term to
describe two different concepts, some courts now use the term “probative
similarity” to describe the similarities relevant to proof of copying. See,
e.g., Peter Letterese & Associates, Inc. v. World Institute of Scientology
Enterprises, International, 533 F.3d 1287, 1301 & n.16 (11th Cir. 2008);
Positive Black Talk Inc. v. Cash Money Records Inc., 394 F.3d 357, 368
& n.7 (5th Cir. 2004); Laureyssens, 964 F.2d at 140.
10                 RENTMEESTER V. NIKE

presumption that the Nike photo was the product of copying
rather than independent creation.

    The remaining question is whether Rentmeester has
plausibly alleged that Nike copied enough of the protected
expression from Rentmeester’s photo to establish unlawful
appropriation. To prove this component of his claim,
Rentmeester does not have to show that Nike produced an
exact duplicate of his photo. See Rogers v. Koons, 960 F.2d
301, 307 (2d Cir. 1992). But, as mentioned, he does have to
show that Nike copied enough of the photo’s protected
expression to render their works “substantially similar.” See
Mattel, 616 F.3d at 913–14.

    In our circuit, determining whether works are
substantially similar involves a two-part analysis consisting
of the “extrinsic test” and the “intrinsic test.” The extrinsic
test assesses the objective similarities of the two works,
focusing only on the protectable elements of the plaintiff’s
expression. Cavalier v. Random House, Inc., 297 F.3d 815,
822 (9th Cir. 2002). Before that comparison can be made, the
court must “filter out” the unprotectable elements of the
plaintiff’s work—primarily ideas and concepts, material in
the public domain, and scènes à faire (stock or standard
features that are commonly associated with the treatment of
a given subject). Id. at 822–23. The protectable elements
that remain are then compared to corresponding elements of
the defendant’s work to assess similarities in the objective
details of the works. The intrinsic test requires a more
holistic, subjective comparison of the works to determine
whether they are substantially similar in “total concept and
feel.” Id. at 822 (internal quotation marks omitted). To
prevail, a plaintiff must prove substantial similarity under
                    RENTMEESTER V. NIKE                       11

both tests. Funky Films, Inc. v. Time Warner Entertainment
Co., 462 F.3d 1072, 1077 (9th Cir. 2006).

    Only the extrinsic test’s application may be decided by
the court as a matter of law, McCulloch v. Albert E. Price,
Inc., 823 F.2d 316, 319 (9th Cir. 1987), so that is the only test
relevant in reviewing the district court’s ruling on a motion to
dismiss. Before applying the extrinsic test ourselves, a few
words are in order about the filtering process that the test
demands.

    Certain types of works can be dissected into protected and
unprotected elements more readily than others. With novels,
plays, and motion pictures, for instance, even after filtering
out unprotectable elements like ideas and scènes à faire,
many protectable elements of expression remain that can be
objectively compared. “[P]lot, themes, dialogue, mood,
setting, pace, characters, and sequence of events” are
elements we have previously identified. Funky Films,
462 F.3d at 1077 (internal quotation marks omitted).

    Photographs cannot be dissected into protected and
unprotected elements in the same way. To be sure, photos
can be broken down into objective elements that reflect the
various creative choices the photographer made in composing
the image—choices related to subject matter, pose, lighting,
camera angle, depth of field, and the like. See Ets-Hokin v.
Skyy Spirits, Inc., 225 F.3d 1068, 1074–75 (9th Cir. 2000).
But none of those elements is subject to copyright protection
when viewed in isolation. For example, a photographer who
produces a photo using a highly original lighting technique or
a novel camera angle cannot prevent other photographers
from using those same techniques to produce new images of
their own, provided the new images are not substantially
12                 RENTMEESTER V. NIKE

similar to the earlier, copyrighted photo. With respect to a
photograph’s subject matter, no photographer can claim a
monopoly on the right to photograph a particular subject just
because he was the first to capture it on film. A subsequent
photographer is free to take her own photo of the same
subject, again so long as the resulting image is not
substantially similar to the earlier photograph.

    That remains true even if, as here, a photographer creates
wholly original subject matter by having someone pose in an
unusual or distinctive way. Without question, one of the
highly original elements of Rentmeester’s photo is the
fanciful (non-natural) pose he asked Jordan to assume. That
pose was a product of Rentmeester’s own “intellectual
invention,” Burrow-Giles, 111 U.S. at 60; it would not have
been captured on film but for Rentmeester’s creativity in
conceiving it. The pose Rentmeester conceived is thus quite
unlike the pose at issue in Harney v. Sony Pictures Television,
Inc., 704 F.3d 173 (1st Cir. 2013), which consisted of nothing
more than a daughter riding piggyback on her father’s
shoulders. The photographer there did not orchestrate the
pose and, even if he had, the pose is so commonplace as to be
part of the public domain. Id. at 187; see also Leibovitz v.
Paramount Pictures Corp., 137 F.3d 109, 116 (2d Cir. 1998)
(pose of a nude, pregnant woman in profile is part of the
public domain).

    Without gainsaying the originality of the pose
Rentmeester created, he cannot copyright the pose itself and
thereby prevent others from photographing a person in the
same pose. He is entitled to protection only for the way the
pose is expressed in his photograph, a product of not just the
pose but also the camera angle, timing, and shutter speed
Rentmeester chose. If a subsequent photographer persuaded
                   RENTMEESTER V. NIKE                     13

Michael Jordan to assume the exact same pose but took her
photo, say, from a bird’s eye view directly above him, the
resulting image would bear little resemblance to
Rentmeester’s photo and thus could not be deemed
infringing.

    What is protected by copyright is the photographer’s
selection and arrangement of the photo’s otherwise
unprotected elements.        If sufficiently original, the
combination of subject matter, pose, camera angle, etc.,
receives protection, not any of the individual elements
standing alone. In that respect (although not in others),
photographs can be likened to factual compilations. 1
Nimmer on Copyright § 2A.08[E][3][c]; Justin Hughes, The
Photographer’s Copyright—Photograph as Art, Photograph
as Database, 25 Harv. J. L. & Tech. 339, 350–51 (2012). An
author of a factual compilation cannot claim copyright
protection for the underlying factual material—facts are
always free for all to use. Feist, 499 U.S. at 347–48. If
sufficiently original, though, an author’s selection and
arrangement of the material are entitled to protection. Id. at
348–49. The individual elements that comprise a photograph
can be viewed in the same way, as the equivalent of
unprotectable “facts” that anyone may use to create new
works. A second photographer is free to borrow any of the
individual elements featured in a copyrighted photograph, “so
long as the competing work does not feature the same
selection and arrangement” of those elements. Id. at 349. In
other words, a photographer’s copyright is limited to “the
14                   RENTMEESTER V. NIKE

particular selection and arrangement” of the elements as
expressed in the copyrighted image. Id. at 350–51.2

     This is not to say, as Nike urges us to hold, that all
photographs are entitled to only “thin” copyright protection,
as is true of factual compilations. A copyrighted work is
entitled to thin protection when the range of creative choices
that can be made in producing the work is narrow. Mattel,
616 F.3d at 913–14. In Mattel, we noted by way of
illustration that “there are only so many ways to paint a red
bouncy ball on blank canvas.” Id. at 914. We contrasted that
with the “gazillions of ways to make an aliens-attack movie,”
a work that would be entitled to “broad” protection given the
much wider range of creative choices available in producing
it. Id. at 913–14. When only a narrow range of expression is
possible, copyright protection is thin because the copyrighted
work will contain few protectable features.

    Some photographs are entitled to only thin protection
because the range of creative choices available in selecting
and arranging the photo’s elements is quite limited. That was
the case in Ets-Hokin v. Skyy Spirits, Inc., 323 F.3d 763 (9th
Cir. 2003), where we held that the plaintiff’s commercial
product shots of a vodka bottle were entitled to only thin
protection. Given the constraints imposed by the subject
matter and conventions of commercial product shots, there
were relatively few creative choices a photographer could
make in producing acceptable images of the bottle. As a
result, subtle differences in lighting, camera angle, and


     2
      We deal here with photographs of recognizable subject matter,
rather than more abstract photographic works. We need not decide
whether the same principles would apply with equal force to that latter
category of works.
                   RENTMEESTER V. NIKE                     15

background were sufficient to render the defendant’s
otherwise similar-looking photos of the same bottle non-
infringing. Id. at 766.

    With other photographs, however, the range of creative
choices available to the photographer will be far broader, and
very few of those choices will be dictated by subject matter
or convention. On the spectrum we set out in Mattel—the
relatively small number of ways “to paint a red bouncy ball
on blank canvas” on one end, and the “gazillions of ways to
make an aliens-attack movie” on the other—many photos will
land more on the “aliens-attack movie” end of the range.
616 F.3d at 913–14. As with any other work, the greater the
range of creative choices that may be made, the broader the
level of protection that will be afforded to the resulting
image. See id. at 916; McCulloch, 823 F.2d at 321.

    Rentmeester’s photo is undoubtedly entitled to broad
rather than thin protection. The range of creative choices
open to Rentmeester in producing his photo was
exceptionally broad; very few of those choices were dictated
by convention or subject matter. In fact, Rentmeester’s photo
is distinctive precisely because he chose not to be bound by
the conventions commonly followed in photographing a
basketball player attempting to dunk a basketball. Such
photos would typically call for a basketball court as the
setting, whether indoors or out. Rentmeester chose instead to
place Jordan on an open, grassy knoll with a basketball hoop
inserted as a prop, whimsically out of place and seeming to
tower well above regulation height. Rentmeester also
departed from convention by capturing Jordan in a fanciful,
highly original pose, one inspired more by ballet’s grand jeté
than by any pose a basketball player might naturally adopt
when dunking a basketball. These creative choices—along
16                 RENTMEESTER V. NIKE

with the other choices Rentmeester made with respect to
lighting, camera angle, depth of field, and selection of
foreground and background elements—resulted in a photo
with many non-standard elements. Rentmeester’s selection
and arrangement of those elements produced an image
entitled to the broadest protection a photograph can receive.

    With those preliminary observations out of the way, we
can now turn to whether Rentmeester has plausibly alleged
that his photo and the Nike photo are substantially similar
under the extrinsic test. As discussed, that inquiry requires us
to assess similarities in the selection and arrangement of the
photos’ elements, as reflected in the objective details of the
two works. We do not have a well-defined standard for
assessing when similarity in selection and arrangement
becomes “substantial,” and in truth no hard-and-fast rule
could be devised to guide determinations that will necessarily
turn on the unique facts of each case. See Peter Pan Fabrics,
Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir.
1960). The best we can do is borrow from the standard Judge
Learned Hand employed in a case involving fabric designs:
The two photos’ selection and arrangement of elements must
be similar enough that “the ordinary observer, unless he set
out to detect the disparities, would be disposed to overlook
them.” Id.

    We conclude that the works at issue here are as a matter
of law not substantially similar. Just as Rentmeester made a
series of creative choices in the selection and arrangement of
the elements in his photograph, so too Nike’s photographer
made his own distinct choices in that regard. Those choices
produced an image that differs from Rentmeester’s photo in
more than just minor details.
                   RENTMEESTER V. NIKE                       17

    Let’s start with the subject matter of the photographs.
The two photos are undeniably similar in the subject matter
they depict: Both capture Michael Jordan in a leaping pose
inspired by ballet’s grand jeté. But Rentmeester’s copyright
does not confer a monopoly on that general “idea” or
“concept”; he cannot prohibit other photographers from
taking their own photos of Jordan in a leaping, grand jeté-
inspired pose. Because the pose Rentmeester conceived is
highly original, though, he is entitled to prevent others from
copying the details of that pose as expressed in the photo he
took. Had Nike’s photographer replicated those details in the
Nike photo, a jury might well have been able to find unlawful
appropriation even though other elements of the Nike photo,
such as background and lighting, differ from the
corresponding elements in Rentmeester’s photo.

    But Nike’s photographer did not copy the details of the
pose as expressed in Rentmeester’s photo; he borrowed only
the general idea or concept embodied in the photo. Thus, in
each photo Jordan is holding a basketball above his head in
his left hand with his legs extended, in a pose at least loosely
based on the grand jeté. The position of each of his limbs in
the two photos is different, however, and those differences in
detail are significant because, among other things, they affect
the visual impact of the images. In Rentmeester’s photo,
Jordan’s bent limbs combine with the background and
foreground elements to convey mainly a sense of horizontal
(forward) propulsion, while in the Nike photo Jordan’s
completely straight limbs combine with the other elements to
convey mainly a sense of vertical propulsion. While the
photos embody a similar idea or concept, they express it in
different ways. See Folkens v. Wyland Worldwide, LLC, —
F.3d —, 2018 WL 841431, at *4–5 (9th Cir. Feb. 13, 2018).
18                 RENTMEESTER V. NIKE

    As to the other highly original element of Rentmeester’s
photo—the unusual outdoor setting he chose—Nike’s
photographer did not copy the details of that element either.
The two photos again share undeniable similarities at the
conceptual level: Both are taken outdoors without the usual
trappings of a basketball court, other than the presence of a
lone hoop and backboard. But when comparing the details of
how that concept is expressed in the two photos, stark
differences are readily apparent. Rentmeester set his shot on
a grassy knoll with a whimsically out-of-place basketball
hoop jutting up from a pole planted in the ground. The grassy
knoll in the foreground of Rentmeester’s photo is wholly
absent from the Nike photo. In fact, in the Nike photo there
is no foreground element at all. The positioning of the
basketball hoops is also materially different in the two
photos. In Rentmeester’s photo, the hoop is positioned at a
height that appears beyond the ability of anyone to dunk on
(even someone as athletic as Jordan), which further
contributes to the whimsical rather than realistic nature of the
depiction. The hoop in the Nike photo, by contrast, appears
to be easily within Jordan’s reach.

    The other major conceptual similarity shared by the two
photos is that both are taken from a similar angle so that the
viewer looks up at Jordan’s soaring figure silhouetted against
a clear sky. This is a far less original element of
Rentmeester’s photo, as photographers have long used similar
camera angles to capture subjects silhouetted against the sky.
But even here, the two photos differ as to expressive details
in material respects. In Rentmeester’s photo, the background
is a cloudless blue sky; in the Nike photo, it is the Chicago
skyline silhouetted against the orange and purple hues of late
dusk or early dawn. In Rentmeester’s photo, the sun looms
large in the lower right-hand corner of the image; in the Nike
                   RENTMEESTER V. NIKE                      19

photo the sun does not appear at all. And in Rentmeester’s
photo, parts of Jordan’s figure are cast in shadow, while in
the Nike photo every inch of Jordan’s figure is brightly lit.

    Finally, the arrangement of the elements within the
photographs is materially different in two further respects. In
Rentmeester’s photo, Jordan is positioned slightly left of
center and appears as a relatively small figure within the
frame. In the Nike photo, he is perfectly centered and
dominates the frame. In Rentmeester’s photo, the basketball
hoop stands atop a tall pole planted in the ground, and the
hoop’s position within the frame balances Jordan’s left-of-
center placement. In the Nike photo, the hoop takes up the
entire right border of the frame, highlighting Jordan’s
dominant, central position. The hoops are also lit and angled
differently toward the viewer, further distinguishing their
expressive roles in the photographs.

    In our view, these differences in selection and
arrangement of elements, as reflected in the photos’ objective
details, preclude as a matter of law a finding of infringement.
Nike’s photographer made choices regarding selection and
arrangement that produced an image unmistakably different
from Rentmeester’s photo in material details—disparities that
no ordinary observer of the two works would be disposed to
overlook. What Rentmeester’s photo and the Nike photo
share are similarities in general ideas or concepts: Michael
Jordan attempting to dunk in a pose inspired by ballet’s grand
jeté; an outdoor setting stripped of most of the traditional
trappings of basketball; a camera angle that captures the
subject silhouetted against the sky. Rentmeester cannot claim
an exclusive right to ideas or concepts at that level of
generality, even in combination. Permitting him to claim
such a right would withdraw those ideas or concepts from the
20                     RENTMEESTER V. NIKE

“stock of materials” available to other artists, 4 Nimmer on
Copyright § 13.03[B][2][a], thereby thwarting copyright’s
“fundamental objective” of “foster[ing] creativity.” Warner
Bros. Inc. v. American Broadcasting Cos., 720 F.2d 231, 240
(2d Cir. 1983). Copyright promotes the progress of science
and the useful arts by “encourag[ing] others to build freely
upon the ideas and information conveyed by a work.” Feist,
499 U.S. at 349–50. That is all Nike’s photographer did here.

    If the Nike photo cannot as a matter of law be found
substantially similar to Rentmeester’s photo, the same
conclusion follows ineluctably with respect to the Jumpman
logo. The logo is merely a solid black silhouette of Jordan’s
figure as it appears in the Nike photo, which, as we have said,
differs materially from the way Jordan’s figure appears in
Rentmeester’s photo. Isolating that one element from the
Nike photo and rendering it in a stylized fashion make the
Jumpman logo even less similar to Rentmeester’s photo than
the Nike photo itself.3

                                    III

    Rentmeester makes three additional arguments in support
of reversal, none of which we find persuasive.




     3
      The district court concluded that, because infringement cannot be
shown as a matter of law, Rentmeester’s claim under the Digital
Millennium Copyright Act fails as well. Rentmeester does not challenge
that conclusion on appeal, other than to argue that the district court erred
in holding that Nike’s works are non-infringing.
                    RENTMEESTER V. NIKE                         21

                                A

    First, Rentmeester contends that dismissal at the pleading
stage is rarely appropriate in copyright infringement cases
and that he should have been allowed to take discovery before
the district court assessed substantial similarity. It is true that
dismissal of copyright infringement claims occurs more
commonly at the summary judgment stage, but dismissal at
the pleading stage is by no means unprecedented. See, e.g.,
Peters v. West, 692 F.3d 629, 631 (7th Cir. 2012); Peter F.
Gaito Architecture, LLC v. Simone Development Corp.,
602 F.3d 57, 64–65 (2d Cir. 2010); Christianson v. West
Publishing Co., 149 F.2d 202, 203 (9th Cir. 1945). Dismissal
is appropriate here because the two photos and the Jumpman
logo are properly before us and thus “capable of examination
and comparison.” Christianson, 149 F.2d at 203. Nothing
disclosed during discovery could alter the fact that the
allegedly infringing works are as a matter of law not
substantially similar to Rentmeester’s photo.

     This is not a case in which discovery could shed light on
any issues that actually matter to the outcome. In some cases,
the defendant claims independent creation as a defense and
thus denies having had access to the plaintiff’s work. In that
scenario, disputed factual issues will often require discovery
to flesh out. Here, Nike does not contest that it had access to
Rentmeester’s photo, so that issue is not in dispute.

   In other cases, more may need to be known about the
range of creative choices available to the plaintiff
photographer in order to determine the breadth of protection
available to his work. Here, we have accepted as true all of
Rentmeester’s allegations concerning the creative choices he
made in producing his photograph. But even granting his
22                 RENTMEESTER V. NIKE

photo the broad protection it deserves, a comparison of the
works at issue makes clear that Nike’s photographer made
creative choices of his own, which resulted in an image and
derivative logo not substantially similar to Rentmeester’s
photo. Nothing disclosed during discovery could strengthen
Rentmeester’s arguments on this score.

                               B

    Second, Rentmeester asserts that because he has made a
strong showing of access, he need make only a lesser
showing of substantial similarity. For this proposition he
relies on the so-called “inverse ratio rule.” Under the inverse
ratio rule, we require “a lower standard of proof of substantial
similarity when a high degree of access is shown.” Three
Boys Music, 212 F.3d at 485 (internal quotation marks
omitted). That rule does not help Rentmeester because it
assists only in proving copying, not in proving unlawful
appropriation, the only element at issue in this case. See Jane
C. Ginsburg & Robert A. Gorman, Copyright Law 133–34
(2012); 4 Nimmer on Copyright § 13.03[C], [D]; 3 William
F. Patry, Patry on Copyright § 9:91 (2017).

    Recall from our earlier discussion that a plaintiff who
lacks direct evidence of copying can attempt to prove that fact
circumstantially by showing that the defendant had access to
the plaintiff’s work and that the two works share similarities
probative of copying. See Baxter, 812 F.2d at 423; 4 Nimmer
on Copyright § 13.01[B]. The inverse ratio rule provides that
the stronger the evidence of access, the less compelling the
similarities between the two works need be in order to give
rise to an inference of copying. On the flip side, the more
compelling the similarities supporting an inference of
copying, the less compelling the evidence of access need be.
                    RENTMEESTER V. NIKE                       23

Indeed, if the similarities are “striking” enough—that is,
highly unlikely to have been the product of independent
creation—such similarities can be sufficient on their own to
establish that the defendant must have had access to the
plaintiff’s work. See Ty, Inc. v. GMA Accessories, Inc.,
132 F.3d 1167, 1170 (7th Cir. 1997); Baxter, 812 F.2d at
423–24 & n.2. That was the case in Feist, for example, where
the plaintiff planted fictitious entries in its white pages
directory precisely to detect copying and those same fictitious
entries appeared in the defendant’s competing directory.
499 U.S. at 344.

    But again, after proving that the defendant’s work is the
product of copying rather than independent creation, the
plaintiff must still show copying of protected expression that
amounts to unlawful appropriation. Peters, 692 F.3d at 635.
The showing of substantial similarity necessary to prove
unlawful appropriation does not vary with the degree of
access the plaintiff has shown. Id.; Positive Black Talk Inc.
v. Cash Money Records Inc., 394 F.3d 357, 372 n.11 (5th Cir.
2004); 3 Patry on Copyright § 9:91. The substantial
similarity standard represents copyright law’s attempt “to
strike a delicate balance between the protection to which
authors are entitled under an act of Congress and the freedom
that exists for all others to create their works outside the area
protected against infringement.” Warner Bros., 720 F.2d at
245. That balance does not shift depending on how strong the
plaintiff’s proof of access may be.

    The inverse ratio rule thus assists Rentmeester on the
issue of copying, but that component of his claim is not
contested in this appeal. The only issue relevant here is
whether Nike engaged in unlawful appropriation by copying
more of Rentmeester’s protected expression than copyright
24                RENTMEESTER V. NIKE

law allows. The inverse ratio rule has no bearing on that
determination.

                             C

    Finally, Rentmeester contends that the district court
should have granted him leave to amend his complaint, rather
than dismissing the action with prejudice. The district court
did not abuse its discretion in dismissing Rentmeester’s suit
with prejudice because amending the complaint would have
been futile. Rentmeester’s photo and the allegedly infringing
works are as a matter of law not substantially similar. None
of the new allegations Rentmeester proposed to add would
have changed that dispositive fact.

     AFFIRMED.
 RENTMEESTER V. NIKE       25

       Appendix




Rentmeester’s photograph




   Nike’s photograph
26   RENTMEESTER V. NIKE




     Nike’s Jumpman logo
                    RENTMEESTER V. NIKE                       27

OWENS, Circuit Judge, concurring in part and dissenting in
part:

    I agree with most of the majority’s analysis, and with its
holding that Rentmeester cannot prevail on his Jumpman logo
copyright infringement claim. However, I respectfully
disagree with the majority’s conclusion as to the Nike photo.

    After correctly (1) setting out the law of copyright as
applied to photographs, and (2) recognizing that
Rentmeester’s photo is entitled to “broad” copyright
protection, the majority then dissects why, in its view, the
Rentmeester and Nike photos are, as a matter of law, not
substantially similar. This section of the majority reads like
a compelling motion for summary judgment or closing
argument to a jury, and it may be correct at the end of the
day. Yet such questions of substantial similarity are
inherently factual, and should not have been made at this
stage of the game.

    Where no discovery has taken place, we should not say
that, as a matter of law, the Nike photo could never be
substantially similar to the Rentmeester photo. This is an
inherently factual question which is often reserved for the
jury, and rarely for a court to decide at the motion to dismiss
stage. See, e.g., L.A. Printex Indus., Inc. v. Aeropostale, Inc.,
676 F.3d 841, 848 (9th Cir. 2012) (“Summary judgment is
‘not highly favored’ on questions of substantial similarity in
copyright cases.” (citation omitted)); Sturdza v. United Arab
Emirates, 281 F.3d 1287, 1296 (D.C. Cir. 2002) (“Because
substantial similarity is customarily an extremely close
question of fact, summary judgment has traditionally been
frowned upon in copyright litigation.” (citation and alteration
omitted)); Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1213
28                  RENTMEESTER V. NIKE

(11th Cir. 2000) (“Copyright infringement is generally a
question of fact for the jury to decide . . . and the court erred
in holding as a matter of law that no reasonable jury could
find that the Warner Brothers promotional single-frame
images were substantially similar to the aspects of [the
photographer’s] work protected by copyright.”).

    “Although it may be easy to identify differences between”
the two photos, the Nike photo also has “much in common”
with the broadly protected Rentmeester photo. Leigh,
212 F.3d at 1216 (reversing summary judgment for defendant
with respect to its alleged infringement of a photograph
notwithstanding “undeniably[] significant differences
between the pictures”). For example, in addition to the
similarity of both photos capturing Michael Jordan doing a
grand-jeté pose while holding a basketball, both photos are
taken from a similar angle, have a silhouette aspect of Jordan
against a contrasting solid background, and contain an
outdoor setting with no indication of basketball apart from an
isolated hoop and backboard.

    I cannot say that no reasonable jury could find in favor of
Rentmeester regarding the Nike photo, so I would hesitate in
granting summary judgment. Here, the majority did not
permit the case even to go that far. Rather, it substituted its
own judgment – with no factual record development by the
parties – as to why the photos are not substantially similar.

    While I disagree with the majority’s ruling as to the Nike
photo, I agree with its holding as to the Jumpman logo. The
only element of the Rentmeester photo which Nike possibly
could have copied to create the Jumpman logo is the outline
of Jordan doing a grand-jeté pose while holding a basketball.
As the cases that the majority cites make clear, the outline of
                   RENTMEESTER V. NIKE                      29

a pose isolated from a photograph enjoys, at best, “thin”
copyright protection. A grand-jeté dunking pose cannot
receive the broad protection that Rentmeester claims, even if
Rentmeester encouraged Jordan to strike it. The pose is
ultimately no different from the Vulcan salute of Spock, the
double thumbs up of Arthur Fonzarelli, or John Travolta’s
iconic Saturday Night Fever dance pose. See, e.g., Harney v.
Sony Pictures Television, Inc., 704 F.3d 173, 187 (1st Cir.
2013) (holding that piggyback pose in photograph was
unprotected element); Mattel, Inc. v. Azrak-Hamway Int’l,
Inc., 724 F.2d 357, 360 (2d Cir. 1983) (per curiam) (holding
that figurine’s “traditional fighting pose” was unprotected
element); Reece v. Island Treasures Art Gallery, Inc., 468 F.
Supp. 2d 1197, 1206–07 (D. Haw. 2006) (holding that hula
pose in photograph was unprotected element); cf. Bikram’s
Yoga College of India, L.P. v. Evolation Yoga, LLC, 803 F.3d
1032, 1036–44 (9th Cir. 2015) (holding that yoga sequence
fell outside of copyright protection).

    All of these poses can exist independently of the
photographer taking them.          It does not matter that
Rentmeester told Jordan to pose that way – standing alone, a
photograph of a mannequin or marionette in that same pose
would receive the same thin protection. Cf. Folkens v.
Wyland Worldwide, LLC, – F.3d –, 2018 WL 841431, at *3–4
(9th Cir. Feb. 13, 2018) (holding that two dolphins crossing
each other was an unprotected element because that pose can
be found in nature and it was irrelevant that the dolphins were
posed by animal trainers). Indeed, Rentmeester cannot cite
any cases to suggest that Jordan’s pose, in isolation, enjoys
anything more than the thinnest of copyright protection. To
hold otherwise would mean that a photographer would own
a broad copyright over photos of human movements,
including facial expressions. I cannot find any authority in
30                  RENTMEESTER V. NIKE

our cases or the relevant copyright statutes that would permit
such a radical change in our intellectual property laws. Cf. id.
at *4 (reaffirming that “ideas, ‘first expressed in nature, are
the common heritage of humankind, and no artist may use
copyright law to prevent others from depicting them’”
(quoting Satava v. Lowry, 323 F.3d 805, 813 (9th Cir. 2003)).

     At this stage of the litigation, we assume that (1) Nike
traced the Jumpman logo directly from the Nike photo, and
(2) that Nike based its photo on the Rentmeester photo. Even
assuming all of this to be true, the Jumpman logo is not
“virtually identical” to the image of Jordan in the
Rentmeester photo. Mattel, Inc. v. MGA Entm’t, Inc.,
616 F.3d 904, 914 (9th Cir. 2010). For example, there are
differences in the angles of Jordan’s arms and legs, and the
Jumpman logo is a black silhouette. And without being
virtually identical, the Jumpman logo – the outline of a pose
by Jordan in the Nike photo – cannot infringe upon any thin
copyright protection enjoyed by the few elements of the
Rentmeester photo allegedly copied. See id.

    Accordingly, while I agree with the majority regarding
the Jumpman logo, I think that whether the Nike photo is
substantially similar is not an uncontested breakaway layup,
and therefore dismissal of that copyright infringement claim
is premature.1




     1
       Because I would reverse the district court’s dismissal of
Rentmeester’s copyright infringement claim with respect to the Nike
photo, I would also reverse the dismissal of his Digital Millennium
Copyright Act claim as to the Nike photo.
