Paramount Pictures has been hit with a potentially headache-inducing lawsuit claiming that the studio had already lost its rights to Top Gun and that the latest sequel represents a copyright infringement. The suit, filed today in California federal court, comes from Shosh and Yuval Yonay, heirs of the writer Ehud Yonay, whose story in the April, 1983 issue of California magazine, entitled “Top Guns,” was source material for the original 1980s Tom Cruise classic. His story focused on pilots and their personal experiences, including a hotshot pilot “Yogi” and his radio intercept officer. According to the suit, Paramount licensed the magazine article within weeks of the story’s publication.
The Yonays are exploiting a provision of copyright law that allows authors and their heirs to reclaim rights granted to publishers and studios after waiting 35 years. According to the suit, as well as copyright records I’ve reviewed, a termination notice claims to have recovered rights to the “Top Gun” story on Jan. 24, 2020.
The Yonays, now represented by copyright termination heavyweight Marc Toberoff—who is also representing comic book heirs looking to terminate Disney’s full right to Marvel characters—allege in the complaint that Paramount “deliberately ignored [the copyright termination], thumbing its nose at the statute.” The case, Toberoff contends, “arises out of Paramount’s conscious failure to re-acquire the requisite film and ancillary rights to the Yonays’ copyrighted Story prior to the completion and release of their derivative 2022 Sequel.” (Paramount responded in a statement, “These claims are without merit, and we will defend ourselves vigorously.”)
The legal issues here could get thorny, and unlike other copyright nuisance suits, I wouldn’t be so quick to assume that Paramount will simply pay to make it go away, rather than fight it out in court. It’s worth noting that in the original registration for Top Gun, the 1986 movie is listed as a “work made for hire,” with new material including portions of the screenplay, remaining musical compositions, other soundtrack and cinematographic material. Works for hire—meaning the employer is deemed the “author”—aren’t eligible for copyright termination, although obviously, the Yonays will soon fight Paramount’s expected contention that the Top Gun story is a work of corporate authorship. The Yonays will also have to pinpoint what’s specifically protectable in the magazine story. Paramount will likely emphasize that facts aren’t entitled to copyright. It might not ultimately matter that the studio once licensed a factual depiction of the Top Gun fighter pilot school. Perhaps anticipating this defense, the plaintiffs emphasize Yonay’s “evocative prose and narrative,” with a list of alleged similarities between the original story and 2022 sequel in a 19-page exhibit to the complaint.
Production on Top Gun: Maverick was completed in 2019, and the film was originally slated to hit theaters in 2021, before the Covid pandemic delayed the release. The timing may also become important as the lawsuit plays out thanks to what’s known as the “derivative works exception,” which permits owners of copyright to create new sequels and remakes “prepared” before termination and then continue to use those works even after termination. (It’s one of the reasons why there are so many Stephen King movie remakes these days.) The nuances of this exception haven’t been litigated much, though, leaving some ambiguity in how a court might deal with last-minute sequels and delayed openings. Regardless, a successful suit would also mean that Paramount loses the ability to make more sequels. Top Gun: Maverick has already grossed nearly $550 million worldwide and spurred talk of revitalizing the franchise.
The Yonays, who are also represented by former 9th Circuit Court of Appeals chief Alex Kozinski, are pushing for an injunction, which could complicate this blockbuster’s continued dominance in movie theaters and eventually on streaming. On the other hand, this suit could have surely been brought earlier so a judge would be unlikely to order the film out of theaters.