Paramount triumphs in the Top Gun Maverick copyright case. Join Scott Hervey and Jamie Lincenberg of Weintraub Tobin on ‘The Briefing’ as they dissect the court’s ruling.

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Show Notes:
Scott

Paramount was finally able to shoot down Ehud Yonay’s copyright infringement lawsuit, which alleged that Top Gun Maverick, the sequel to the popular 1986 motion picture Top Gun, infringed the copyright in his magazine article. The district Court granted Paramount’s motion for summary judgment and dismissed Yonay’s complaint. I’m Scott Hervey from Weintraub Tobin, and I’m here today with Jamie Lincenberg from Weintraub Tobin and we’re going to talk about the Court’s ruling on this installment of “The Briefing.” Jamie, welcome back to “The Briefing.”  

Thanks for having me today, Scott.  

Great. Well, first, let’s get into the facts of the case a little bit. So, in May 1983, California Magazine published the article Top Guns by Ehud Yonay. This article was an inside look at the real Navy fighter’s weapons school, Top Gun, based out of Miramar, California. The article begins with a vivid description of two Top Gun F-14 Tomcat aviators, Yogi and Possum, on a hop, a simulated dogfight training against two Top Gun instructors. Then, the article continues with a deep dive into what makes Yogi and Possum and the other fighter pilots at Top Gun tick. A look at the Top Gun training regimen, what life on the base is like, and the history of Top Gun. When the article was published, it was optioned. In the credits for Top Gun, Yonay is credited in the original movie as the writer of the magazine article.  

On January 23rd, 2018, the Yonays properly availed themselves of their right to recover the copyright to the story optioned by Paramount by sending Paramount a statutory notice of termination under the Copyright Act, and then filed it with the Copyright Office. As we have discussed previously on this program, Section 203 of the Copyright Act permits authors or their successors to terminate grants of copyright assignments and licenses that were made on or after January 1, 1978, when certain conditions have been met. Upon the effective date of termination, all rights in the work that were covered by the terminated grant revert to the author. However, any derivative work prepared under the authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination. But this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work covered by the terminated grant. The Yonays sued Paramount for copyright infringement, claiming that the Top Gun Maverick infringes that Yonays rite in their original article.  

In Paramount’s motion for summary judgment, the court took into account expert testimony of both parties. The court found that the plaintiff’s expert testimony was unhelpful and inadmissible because that expert failed to filter out the elements of the article and the sequel that are not protectable by copyright law.  

In order to state a claim for infringement, a plaintiff must show substantial similarity between the work’s protected elements. Determining whether works are substantially similar involves a two-part analysis consisting of, one, the extrinsic test and two, the intrinsic test. The extrinsic test assesses the objective similarities of the two works, focusing only on those protectable elements of the plaintiff’s expression. Whereas, on the other hand, the intrinsic test examines an ordinary person’s subjective impressions. Although a plaintiff must prove both to establish substantial similarity, a finding of substantial similarity under the extrinsic component is a necessary prerequisite to considering the intrinsic component, which is expressly reserved for the jury. As such, on a motion to dismiss, the court will only consider the extrinsic test, and the extrinsic test can end a plaintiff’s infringement case only when the similarities between the works are either wholly due to unprotected elements or where the amount of similar protected expression is de minimis as a matter of law.  

In applying the extrinsic test and by filtering out the elements that are not protected under copyright law, that is, facts, ideas, sans affair, which are situations and incidents that flow necessarily or naturally from a basic plot line or plot premise. And stock elements, the two works are not substantially similar. The plaintiffs contended that the article and the sequel were substantially similar because they have similar plots, sequences of events, pacing, themes, moods, dialogs, characters, and settings. Paramount contended that the similarities identified by the Yonays were either not similarities at all or were similarities based on unprotected elements of the work. The court agreed with Paramount.  

The court found that any similarities between the article and the sequel were due either to the inclusion of unprotectable facts, general plot ideas, or sans affair. The fact that both the article and the sequel contain Top Gun instructors and graduate fighter pilots is not actionable since those are factual elements and are not protected by copyright. The fact that the article and the sequel are similar because they depict or describe fighter pilots landing on an aircraft carrier being shot down while flying and cruising at a bar is a showing of familiar stock scenes or sans affair.  

The court also found significant portions of the article and the movie dissimilar. The themes and the moods of the two works are dissimilar, as is the dialog and the selection and arrangement of elements, including the unprotectible elements. The court found those to all be dissimilar.  

The selection and arrangement analysis that Scott just noted goes back to Feist, the telephone book case, where a combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.  

That’s right. The court here found that the selection and arrangement of the unprotectable elements were not necessarily original enough or not substantially similar enough. Not just that they were not original enough but that they were not substantially similar. Additionally, the court noted that the dialog in the article is unprotectable in any event since the dialog itself is a historical fact. In summing up the court’s objective comparison of the works, the article and Top Gun Maverick, their respective plots, their sequence of events, their pacing, their themes, their moods, their dialog, and their characters, the court found that the two works are not substantially similar. And while the article and Top Gun Maverick have some similarities, those similarities are all based on unprotected elements.  

So, wrap this up for us, Scott. What’s our takeaway from this lawsuit?  

So, first takeaway is the importance of expert opinion. And we really just touched on this for a moment, but it did loom large in the court’s opinion itself. Once a copyright case gets past the pleading stage, in the Ninth Circuit, at least, It really becomes a war of the experts on the battleground of substantial similarity, like how I kept to the military theme there. The second is that historical source material can be tricky. While the positive side for the producer is that your work won’t necessarily infringe on the source material, the negative side is that another work based on the same historical source material might not infringe on your work either.  

Thanks, Scott. There are definitely more of these lawsuits on the horizon, so I’m sure you will keep a pulse on those, and we’ll see where these go.  

We will. We’ll definitely track these termination lawsuits because they’ll definitely be interesting. Thanks, Jamie, for joining me today.  

Thank you.  

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