A federal appellate court has upheld a decision tossing out a photographer's lawsuit claiming Nike Inc. infringed his copyright of a photograph of Michael Jordan when commissioning its own photo to design the “Jumpman” logo used on Jordan-branded shoes and apparel.

The U.S. Court of Appeals for the Ninth Circuit on Tuesday affirmed a lower court decision that found Nike didn't infringe Jacobus Rentmeester's copyright to a photo of a picture he shot of Jordan when he was still a student at the University of North Carolina. Although the court found Rentmeester could claim a valid copyright to his image and a presumption that the similar Nike photo was the product of copying rather than independent creation, it further found that Rentmeester couldn't show that Nike copied enough of the protected expression from his photo to establish an unlawful appropriation.

Rentmeester's photo originally appeared in Life magazine as part of a photo essay featuring American athletes, who like Jordan, were set to compete in the 1984 Summer Olympic Games. Rentmeester had Jordan pose in a position based on ballet's grand jeté and chose to shoot Jordan on an isolated grassy knoll on UNC's campus with a whimsically high basket set in the background. Shortly after Rentmeester's photo was published in the magazine, Nike paid him $150 for a limited license to use transparencies of the image “for slide presentation only.”

Nike shot its own image of Jordan in a similar pose with the Chicago skyline in the background before it launched the wildly successful Air Jordan line of sneakers and apparel when Jordan played professionally for the Chicago Bulls.

In Tuesday's decision, Ninth Circuit Judge Paul Watford wrote that Rentmeester's photo is “undoubtedly entitled to broad rather than thin protection” because of the unconventional choices the photographer made in composing it. Still, he found the Nike photographer, who shot the photo that became the basis for the Jumpman logo “made his own distinct choices.”

“Those choices produced an image that differs from Rentmeester's photo in more than just minor details,” Watford wrote. “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.”

In a partial dissent, Ninth Circuit Judge John Owens wrote that he agreed with the majority in regard to the Jumpman logo, but he found the question of whether the Nike photo infringed upon Rentmeester's copyright was a fact-based issue better suited to be decided on summary judgment rather than at the motion to dismiss stage.

Rentmeester's lawyer, Lieff Cabraser Heimann & Bernstein's Dean Harvey, didn't respond to a message Tuesday morning. Likewise, Nike's lawyer, Dale Cendali of Kirkland & Ellis, didn't immediately respond to a message seeking comment.