Heirs to Author of Article That Inspired Top Gun Crash and Burn in California District Court

“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… Those factual elements are not protected by copyright law.” – District Court order

Top gunThe U.S. District Court for the Central District of California ruled on Friday that Shosh Yonay and Yuval Yonay, the widow and son of Ehud Yonay, who authored a 1983 magazine article that inspired the renowned film, Top Gun, were not entitled to damages for copyright infringement relating to the 2022 sequel to the film.

Yonay authored a magazine article titled “Top Guns,” published in California Magazine on April 21, 1983, that was an account of the experiences of F-14 pilots in training at Navy’s Fighter Weapons School, known as “Top Gun.” Paramount Pictures and Yonay entered into an Assignment of Rights in 1983 that assigned Paramount motion picture rights to the Article and required Paramount to credit Yonay “on the film of any motion picture photoplay” that is “produced . . . []under” the Assignment of Rights “and substantially based upon or adapted from [the Article] or any version or adaptation thereof . . . .” Yonay was given a “suggested by” credit on the original film, released in 1986. The Assignment of Rights was terminated by Yonay’s family in 2020, following his death, and they subsequently filed a complaint in 2022 alleging breach of contract, declaratory relief and copyright infringement, including because “key elements” of the 2022 Sequel, Top Gun: Maverick, are “substantially similar” to Yonay’s original article. Yonay also sought a declaration that the Sequel is a “derivative” of the Article and that Paramount “does not have any rights to make, exploit, or distribute” the Sequel.

The court first granted Paramount’s motion to exclude the report and testimony of Yonay’s expert witness, Henry Bean, who the court said provided “unhelpful” opinions about the similarities between the Article and the Sequel because he failed to filter out the unprotectable elements of each. The court then denied Yonay’s motion to dismiss the testimony of Paramount’s expert, Andrew Craig, a naval officer who opined on the factual accuracy of the Article, as the court said it was helpful “because, in ruling on the parties’ cross-motions for summary judgment, the Court must filter out the unprotected, factual elements of the Article and Sequel to assess whether they are substantially similar.”

Turning to the cross-motions for summary judgment, the court explained that it applies only the “extrinsic test” for determining if two works are substantially similar at the summary judgment stage. “The extrinsic test is an ‘objective comparison of specific expressive elements,’ which ‘focuses on articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events in two works.’” It requires distinguishing the protectable from the unprotectable elements of the works and then considering the substantial similarity only between the protectable ones.

Yonay claimed the Article and the Sequel are substantially similar because they have “similar plots, sequences of events, pacing, themes, moods, dialogue, characters, and settings.” But the court determined that the similar elements between the Article and the Sequel are factual ones and thus not protected by copyright law:

“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). Those factual elements are not protected by copyright law. And while both Works involve fighter pilots training and embarking on missions, those general plot ideas are also not protected…. To the extent Plaintiffs contend that the Works are similar because they depict or describe fighter pilots landing on an aircraft carrier, being shot down while flying, and carousing at a bar, those are unprotected facts, familiar stock scenes, or scènes à faire…. Other than similarities based on unprotected elements, the Works’ plots are dissimilar.” [citations omitted]

The court further found that there was no breach of contract because Paramount was no longer obligated to credit Yonay under an Assignment of Rights, as it was terminated in 2020. And even it had not been, the Sequel could not have been produced under the Assignment of Rights because it doesn’t infringe Yonay’s copyrights, said the court. “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.”

Commenting on the case, Zach Al-Tabbaa of Hall Estill said, while it may seem surprising at first due to the clear association between the sequel and the original film, “that’s not the case here and the reasoning makes sense.” Al-Tabbaa added:

“This case serves as an example for current rights-holders—if your characters, plot, theme, etc. derive from real individuals, narratives, occurrences, or locations, there’s a genuine risk that you may, and probably will, be excluded from a sequel.

In terms of its broader implications for Hollywood, this ruling signifies another victory for filmmakers and another setback for writers. The key takeaways here revolve around content and expert witness testimony: regarding content, writers must recognize the real possibility that their stories, serving as original source material, may not entitle them to ongoing recognition if substantially based on real individuals, facts, events, locations, etc.”

Al-Tabbaa also said the dismissal of Yonay’s expert witness was a “tipping point” in the case and is a lesson to ensure that the testimony of expert witnesses is solid and admissible.

Image Source: Deposit Photos
Author: eskystudio
Image ID: 573705750 


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