‘Top Gun’ author’s estate targets Paramount
As “Top Gun: Maverick” skyrockets at the box office, with global sales exceeding $780 million at the time of writing, creator Paramount Pictures is facing a lawsuit taking aim at the film’s inspiration.
The family and heirs of writer Ehud Yonay, who authored an article on which the original 1986 “Top Gun” was based, are suing Paramount for copyright infringement.
Ehud Yonay’s lengthy story “Top Guns”, published in California magazine in May 1983, was based on the true stories of fighter pilots at a US military base called “Top Guns”.
Within weeks, Paramount had secured exclusive film rights to the story, attracted by its “literary and cinematic style”. The resulting “Top Gun”, considered by many as a classic, is widely known to be derived from Yonay’s story and is acknowledged thus in the credits.
Some 39 years since the rights were granted, Paramount’s sequel, “Top Gun: Maverick”, is among the biggest films of 2022.
But Shosh and Yuval Yonay—Ehud’s widow and son—now argue that Paramount “consciously failed to secure a new licence of film and ancillary rights” in a lawsuit brought before the US Central District Court of California on June 6.
They are seeking unspecified damages and a permanent injunction on the new film, citing “diminution of the value of their copyright and interests, loss of customers, dilution of goodwill, and injury to their business reputation”.
Notice of termination
The Yonays terminated Paramount’s copyright after the statutory 35 years, and within the allocated timeframe of five years after this period had passed, sending Paramount a notice of termination on January 23, 2018. This became effective two years later, on January 24, 2020.
The Copyright Termination Right is well known among copyright lawyers and is described in the Yonays’ complaint as “the most important authorial right provided by the Copyright Act, short of copyright itself”.
The rights to the story, therefore, reverted to the Yonays, but they claim Paramount “deliberately ignored this, thumbing its nose at the statute” prior to the completion and release of “Maverick”—on May 8, 2021, and May 27, 2022, respectively.
In a statement, Paramount said: “These claims are without merit, and we will defend ourselves vigorously.”
In fact, Paramount had originally planned to produce the sequel in 2018, pencilled for release in 2019, and then 2020, but claims that the pandemic caused several delays.
Paramount denies the sequel to be an “obvious derivative” and argues that it was completed by January 24, 2020, which, the plaintiffs counter, is “an attempt to bootstrap the 2022 sequel into the ‘prior derivative works’ exception”.
Representing the plaintiffs, Marc Toberoff—founding partner of Toberoff & Associates in California—explains that the completion date is crucial. “What matters is when the derivative work, 'Top Gun: Maverick' was completed," he explains. "We have evidence from public sources that the film was still in post production for at least a year after Paramount lost its copyright to Ehud Yonay's article.”
Toberoff claims that Paramount originally delayed releasing the film in order to shoot more, and for special effects work, which he says had “nothing to do with the pandemic”.
“Paramount made a commercial decision not to release the film and continue working on it. They must now live with that decision.”
A question of timing
And so it seems that the case will ride on the nitty gritty of timing.
Bryan Wheelock, principal of Harness IP’s Missouri office in the US, says: “If the original grant of rights to Paramount included the right to make the sequel, then the timing is unfortunate, as the copyright in the original article was allegedly reacquired by the Yonays in January 2020. If the movie had been made before then, Paramount would have no issue.
“However, Paramount was likely fully aware of the situation, and made a conscious decision that the sequel did not use any of the protectable expression from Yonay’s article, even if it generally was about the same subject matter.”
Wheelock suggests that clarity of application is lacking in US copyright law. “It would be nice if its application were more clear, but a statute cannot possibly address every conceivable situation, and thus it is up to the courts to decide issues such as infringement, fair use, etc.
“The right to terminate transfers, and the prior derivative rights exception, are an example of the statute’s attempt to be fair to both authors and those who deal with them. But it is left up to the courts to make it work.”
Nuts and bolts of copyright
Wheelock contends that, as in most copyright cases, the deeper issue is whether the sequel takes a copyrightable expression from the non-fiction article.
For example, in the original “Top Gun”, the two main characters are based on the subjects of Ehud Yonay’s article: two real-life characters, nicknamed “Yogi” and “Possum”, and the location is based on the pilots’ real-life naval base “Top Gun” in San Diego. This is undisputed.
But it may be a different case for “Maverick”.
“Copyright does not protect ideas—it merely protects how the ideas are expressed,” says Wheelock. “Thus there can be multiple works on the same subject, as long as they don’t borrow the way that subject is described.
“[US] Copyright law also has a scenes a faire doctrine under which some similarities between works on the same subject are discounted because any work about that subject would have such features.”
Key lessons
Mark Kramer, partner at Potter Clarkson, meanwhile, considers the key lessons that could be taken from this case. “It remains to be seen whether this case has any merit, but it joins a long line of recent copyright cases in the news emphasising the twin challenges around copyright.”
He advises: “Firstly, make sure your housekeeping is in order—know who owns the copyright, what you are allowed to do with those rights, and how long your rights last. Don’t just put your licence or option agreement in a draw and forget about it.
“Only last year, we saw Rockstar temporarily withdraw its remastered ‘Grand Theft Auto’ trilogy from sale on the PC, to allow them to ‘remove files unintentionally included’ in that version of the game—namely the distinctive soundtrack that helped to make the franchise so successful.
“And secondly, where your copyright work is likely to generate significant profits, be aware of the increased risk that claims of infringement will follow and take your housekeeping even more seriously—just ask Ed Sheeran and possibly Mariah Carey.”
Wheelock notes how seemingly “every time there is a hugely successful work, whether a song (consider Mariah Carey), or movie (consider ‘Pirates of the Caribbean’, ‘Twister’ and many, many others), someone who had a similar idea “pops up to try to share the credit—and the cash”.
However, Toberoff says that Ehud Yonay's heirs “ask only their fair share, commensurate with his contribution that started it all”.
"To compare this case, where there is a clear prior chain-of-title, to "coming out of the woodwork" claims regarding major Hollywood movies is farcical, at best."
He adds: “Rather than spending tremendous sums on attorney's fees, we invite Paramount to the negotiating table to work out a fair and honourable settlement, one that is consistent with what Congress intended when it passed the statutory termination provisions decades ago.”
WIPR has approached Paramount Pictures for comment.
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