Top Gun Copyright Lawsuit—A Real Dog Fight or Destined to Flameout?

“Plaintiffs in a recent lawsuit over Top Gun Maverick are likely to face some rather intense bogeys in the near term.” June 6, Paramount Pictures got its tower buzzed for copyright infringement in the U.S. District Court for the Central District of California over the blockbuster film of the summer, Top Gun Maverick. According to the allegations in the complaint, in 1983, author Ahud Yonay wrote a magazine story about the real-life exploits of two naval fighter pilots entitled, “Top Guns.” Paramount allegedly secured the “exclusive motion picture rights to Ehud Yonay’s copyrighted story” and in 1986 released the motion picture Top Gun. Fast forward a few decades. In 2018, Yonay’s heirs (Plaintiffs in this action who are both Israeli citizens) allegedly served Paramount with a notice “terminating” the original assignment of the motion picture rights to Paramount. Paramount apparently took the position that the purported termination was ineffective and, over the Memorial Day weekend, launched Top Gun Maverick to critical acclaim at the box office (and to the delight of millions of fans of the original 1980s classic).

There are a number of observations about this suit.

The ‘Termination’ Issue

The complaint appears to correctly lay out the legal issue and facts supporting a properly served termination. Under the Copyright Act, an author that granted rights to a work can “terminate” that grant (personally or through heirs) starting at the end of the 35th year of the date of the grant, and for five years thereafter. 17 U.S.C. § 203(a)(3). According to the complaint, the termination became effective on January 24, 2020. So, the timeline for termination does appear plausible. But, that’s not the end of the story here as there are a number of exceptions related to termination. Moreover, there are some other wrinkles here worth highlighting.

Do Plaintiffs Have Standing to Sue? 

The complaint alleges Yonay owned the original copyright in the story “Top Guns” and that it was first published in a 1983 issue of the California magazine. This is where Plaintiffs’ claims may be flying through a bit of a jet wash. Assuming the original story was a U.S. work (which appears to be the case based on the allegations of first publication), Plaintiffs cannot file a claim for infringement unless the copyright is actually registered. 17 U.S.C. § 411(a) (“no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.”); see also, Fourth Estate Pub. Ben. Corp. v., LLC, 139 S. Ct. 881, 892 (2019) (holding that registration has been made within the meaning of 17 U. S. C. §411(a) “when the Register has registered a copyright after examining a properly filed application”).

Although the complaint does cite a copyright registration, Reg. No. TX0001213463, the copyright claimant on that registration is “California Magazine, Inc.” and it is a copyright in a “serial publication” not Yonay’s original story. So, that registration doesn’t appear to help Plaintiffs. Further, it’s not clear if Plaintiffs (who are both citizens of Israel) are taking the position that a registration is unnecessary given that they are foreign nationals. Even if this is a valid basis for suing without a registration when the underlying work they inherited is a U.S. work, Plaintiffs still “must allege” that the work need not be registered. UAB “Planner5D” v. Facebook, Inc. (N.D. Cal. Nov. 21, 2019). Here, Plaintiffs have done the opposite and have claimed the work is registered. Paramount could put perhaps put a missile lock on these claims from the outset, and it will be up to Plaintiffs to do some maneuvering to get reengaged.

Scène à Faire?

Even if Plaintiffs have standing, a healthy amount of the claims for infringement appear to be “stock” scenes and/or expression of ideas that one would fully expect to be present in any story or film about high flying naval pilots. Here are just some of the “elements” of the original story that were allegedly copied or misappropriated in Top Gun Maverick:

  • Aerial combat training is portrayed as rigorous, and of life-or-death importance.
  • Training “dog fights” are portrayed as fierce, all while maintaining a collegiate team spirit.
  • Aerial combat training is portrayed by juxtaposing the ethereal beauty of the skies (the “vast blue dome of sea and sky”) with jarring unpredictable action at gut-wrenching speeds.

These, and many others like them, seem to be typical stock scenes that one would expect to encounter in any story about the travails and exploits of intense aviators.

The ‘Inverted Dive’ With the Russian MiG

One final observation. The complaint also seems to suggest that the famous scene in the original Top Gun where Maverick and Goose are inverted over a Russian MiG was the original expression of Yonay. That does not appear to be accurate. Although the original “Top Guns” story published by California magazine contains a photograph of one F-14 plane “inverted” atop another one, that photo was apparently taken by a “C.J. Heatley”—an individual not mentioned in the complaint or otherwise connected to this suit. Thus, this “inverted expression” does not appear to be the original expression of Mr. Yonay in any event.

In short, Plaintiffs are likely to face some rather intense bogeys in the near term. Whether Plaintiffs can outgun or outrun them remains to be seen, but they better feel the need for speed!         

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Join the Discussion

2 comments so far.

  • [Avatar for Susana Christine]
    Susana Christine
    September 2, 2022 02:08 am

    I think the Yonays have no case at all based on the alleged copyright registration of the article. If I understand this right, the only person or entity who may terminate Paramount’s rights to the article is California Magazine. And clearly, California Magazine did no such thing. So the issuing of a termination notice on the Yonays’ part seems null and void since they are not the copyright claimants according to the registration. The termination date of January 24, 2020 seems to be null and avoid since it is when the Yonays filed the termination notice with the Copyright Office. Looks like the Copyright Office has a fraudulent termination notice in their files. This seems to me a cash grab on the part of the Yonays. I don’t think they would have pulled this ridiculous stunt and requested that the distribution of the film be stopped if it wasn’t doing so well at the box office. Paramount seems to have not committed a copyright infringement in any way and therefore have done nothing wrong by creating and releasing this movie. The Yonays’ legal actions seem to be shady since it seems the copyright of the article doesn’t even belong to them.

    I don’t care if Ehud Yonay had a tidbit in his article about a bell being rung to signal that beer at a bar is on you, which occurred in Top Gun: Maverick. I highly doubt that it is even a copyrightable piece of content, since ringing a bell to signal that beer at a bar is on you is most likely not limited to Yonay’s article. It’s a stock idea. No one can copyright a stock idea. I don’t care that there appear to be a lot of similiarities in both movies to Yonay’s original article. Maverick, Goose, and Rooster are fictional characters BASED on real aviators that Yonay wrote about for California Magazine, who seem to be the real copyright claimant. Shame on the Yonays and may Paramount win this rather pointless lawsuit.

  • [Avatar for Daniel]
    June 14, 2022 11:02 am

    Interesting – I wonder how many of the Scene a Faire came about because of the original movie? Also interesting the original copyright was not with the magazine (assuming there is a copyright other than the registered one mentioned here which was to the magazine). Wonder if Paramount paid the right person originally. Will have to try to find the original article never knew this existed.