The “Top Gun” Case

The “Top Gun” Case: How Writers of Non-Fiction Get Short Shrift Under Copyright Law

 

On April 5, 2024 U.S. District Court Judge Percy Anderson granted summary judgment in favor of Defendant Paramount Pictures Corp. in a copyright infringement case regarding “Top Gun: Maverick.”

The Plaintiffs are Shosh Yonay and Yuval Yonay, the widow and son of the late journalist Ehud Yonay, who authored a 1983 article titled “Top Guns.” Plaintiffs filed a case for breach of contract and copyright infringement against Paramount for their production of the 2022 film “Top Gun: Maverick” in 2022. What is so fascinating about this case is that Paramount acquired the rights to this California Magazine article in 1983, in order to develop the original “Top Gun” movie that was released in 1986. Plaintiffs terminated this assignment of their copyright in 2020 under section 203 of the Copyright Act, two years before the release of “Top Gun: Maverick.”

Plaintiff asserted that the “Top Guns” article and “Top Gun: Maverick” film had many similarities including: (1) friendship between pilots; (2) tension between Naval brass and “hot-shot” pilots; (3) the Navy’s frat-boy culture; (4) scenes depicting fighter pilots landing on air craft carriers; and (5) scenes depicting fighter jets being shot down. Apparently Paramount had deemed acquisition of the rights necessary in 1983, but did not re-acquisition the rights after termination to release the sequel.

In response, the Defendant pointed out that “Top Gun: Maverick” is largely based on research and interviews with real pilots. Judge Anderson agreed with the Defendants and held the events based on real experiences at the Navy’s fighter pilot school were not copyrightable in the first place. Additionally, Judge Anderson held general plot concepts of training and embarking on missions are not protectable. Regarding particular scenes like fighter jets landing on air craft carriers or being shot down, Judge Anderson ruled those are unprotectable because they are scenes common to the genre, otherwise known as scenes-à-faire. Ultimately, Judge Anderson ruled in favor of the Defendants, finding the copyrightable elements in each the article and the film were not substantially similar.

Plaintiff’s breach of contract claim was based upon the fact that in the event the termination of copyright was ineffective, then Defendant’s breached their contract by not crediting Yonay for his contribution to the film. Judge Anderson rejected this argument, noting that because there was no copyright infringement, and that any member of the public could have made this movie without crediting Yonay, the Defendants should not be required to either. The Plaintiffs have filed an notice of appeal on May 6, 2024.

Author’s Note: It does not appear that the plaintiff received a fair shake on this case for 2 reasons: (1) on the same record, in terms of the content of the two works at issue, the Judge previously denied a motion to dismiss on November 9, 2022; (2) Paramount apparently deemed acquisition of the rights to the article important enough to acquire in 1983, but decided to take their chances in court on the sequel. Also, in light of the recent Hanagami v Epic Games case, the prior work does not have to permeate the infringing work; even a small taking that is qualitatively significant is enough, and it appears that is what happened here.

The plaintiffs are represented by Marc Toberoff and Jaymie Parkkinen of Toberoff & Associates PC and Alex Kozinski of the Law Office of Alex Kozniski.

Paramount is represented by Molly M. Lens, Matthew Kaiser, and Danielle R. Feuer of O’Melveny & Myers LLP.

The case is Shosh Yonay et al. v. Paramount Pictures Corp. et al., case number 2:22-cv-03846, in the U.S. District Court for the Central District of California.

* Lowe & Associates (“The Firm”) is a boutique entertainment and business law firm located in Beverly Hills, California. The firm has extensive experience handling cases involving copyright law, having provided top-quality legal services to its clients since 1991. The Firm is recognized for its many achievements, including successfully litigating many high-profile cases.

 

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