Paramount has prevailed in a copyright lawsuit, brought by the heirs to the author of a 1983 magazine story that inspired the original Top Gun, accusing the studio of forging ahead with the blockbuster sequel without renegotiating a new license.
U.S. District Judge Percy Anderson, in an order dismissing the case on Friday, found that several elements from the film — including plot, theme, setting and dialogue — are “largely dissimilar” from Ehud Yonay’s article. And to the extent both works revolve around a fighter pilot training school, the court concluded that any overlapping factual similarities aren’t protected by copyright law.
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In a statement, copyright termination heavyweight Marc Toberoff, representing the plaintiffs, said the court’s ruling dismissing the lawsuit on summary judgment will be appealed. He added, “Once Yonay’s widow and son exercised their rights under the Copyright Act to reclaim his exhilarating Story, Paramount hand-waved them away exclaiming ‘What copyright?’ It’s not a good look.”
The lawsuit from Shosh and Yuval Yonay alleged that the rights to the story reverted back to them in 2020 after sending Paramount a notice of termination. They took advantage of a provision in copyright law allowing authors to reclaim the rights to their works after waiting a period of time.
Paramount argued that it didn’t have to acquire a new license since the article at issue is a nonfiction piece and shares no similarity to the action blockbuster. It also maintained that the sequel was completed prior to the termination date.
The court was unconvinced, mainly attributing to the dismissal to unprotectable factual similarities between the two works. “Although the plots of both the Article and Sequel feature Top Gun and various graduates and instructors, Top Gun is a real fighter pilot school and the graduates and instructors mentioned in the Article are real people (i.e., Yogi and Possum),” states the order. “Those factual elements are not protected by copyright law.”
Anderson applied the federal appeals court’s so-called extrinsic test, which compares similarities in plot, theme, dialogue, characters, setting and pace, among other things, between two works. Under that analysis, he excluded certain factual elements, which aren’t covered by copyright law, such as the general plot idea of fighter pilots training and embarking on missions.
Responding to arguments that the works are similar because they both depict fighter pilots landing on an aircraft carrier, being shot down while flying and carousing at a bar, the court said they are “unprotected facts” or “familiar stock scenes.”
“The pacing and sequence of events in the Works are also not similar,” the order states. “The Article is structured in a non-linear fashion, shifting back and forth between describing Yogi and Possum’s training, their backgrounds, the technical aspects of F-14 fighter jets, etc. The Sequel, on the other hand, proceeds in a linear fashion and has a consistent pace.”
Anderson found that themes, dialogues, characters, setting, and selection and arrangement of the movie aren’t substantially similar to those presented in the article. Notable differences in setting, for example, include the pilots preparing for their mission at Naval Air Station North Island in the sequel opposed to Naval Air Station Miramar in the article, he said.
Any similarities, the court stressed, are “based on unprotected elements.” This includes dialogue, which cannot make up the basis of a copyright claim because it’s presented as real statements made by actual people in the article.
The court’s dismissal largely swung on expert testimony over alleged similarities submitted by both sides. The 9th U.S. Circuit Court of Appeals has warned against the premature dismissal of copyright lawsuits before allowing experts to testify. That partially served as the basis of a federal appeals court in 2020 reviving a lawsuit alleging that Guillermo del Toro’s The Shape of Water infringed the work of Pulitzer Prize-winning author Paul Zindel. Toberoff represented the plaintiff in that case, which was also overseen by Anderson.
Notably, testimony from the Yonays’ expert was excluded. The court agreed with Paramount that he improperly failed to filter out facts from the article and film that aren’t protected by copyright law and that his opinions were “unhelpful” because he provided a subjective comparison of the works. Testimony from Paramount’s expert, on the other hand, was allowed to be considered.
The breach of contract claim for Paramount’s refusal to credit Yonay in the film was also dismissed.
Anderson said that Paramount was not required to credit Yonay because the sequel was not produced under the assignment of rights for the 1983 article. The film, he reasoned, was made “independently of the rights conveyed” to Paramount by the contract.
“Because a member of the public could produce a motion picture like the Sequel — that does not infringe on the Article’s copyright — without crediting Yonay, the Assignment of Rights should not be construed to require Defendant to do so,” the order reads.
A Paramount Pictures spokesperson said in a statement, “We are pleased that the court recognized that plaintiffs’ claims were completely without merit.”
The dismissal puts to rest a legal headache for Paramount that could’ve impacted a potential third film to the franchise, which is being written by Maverick co-writer Ehren Kruger with director Joe Kosinksi in talks to direct. The sequel massively overperformed at the box office, earning $1.5 billion globally.
The order could undermine the notion that studios have to reacquire the rights to stories for a sequel if the original was based on source material. It may serve as ammunition for Columbia Pictures in a copyright lawsuit it filed against George Gallo, who wrote the story that was developed into the 1995 action hit Bad Boys, to reassert its rights to the movie franchise. In that case, the studio is arguing that Gallo cannot claw back ownership of his story since he allegedly penned it as a work-made-for-hire.
