The heirs of the author who wrote an article upon which “Top Gun” is based, claims the film’s sequel is an infringing derivative work. Paramount has since filed a motion to dismiss the case. Scott Hervey and Josh Escovedo discuss this on The Briefing by the IP Law Blog.

Watch this episode here.

Show Notes:

Scott:

We previously reported on the copyright lawsuit filed by the heirs of the author who wrote an article upon which Top Gun is based alleging that “Top Gun Maverick” is an infringing derivative work. Paramount recently filed a motion to dismiss, arguing that the sequel to the 1986 motion picture, Top Gun, does not infringe the copyright in Ehud Yonay’s magazine article. The District Court denied Paramount’s motion to dismiss. We are going to talk about that on this installment of the Briefing…by the IP law blog.

Scott:

In May 1983, California magazine published the article Top Guns, by Ehud Yonay. This article was an inside look at the real Navy Fighter Weapons School Top Gun based out of Miramar California. When the article was published, it was optioned and in the credits for Top Gun Yonay is credited on the original movie as a writer of the magazine article.

On January 23, 2018, the Yonays properly availed themselves of their right to recover the copyright to this article by sending Paramount a statutory notice of termination under Copyright Act, and then filing it with the Copyright Office.as we have discussed previously on this program, subject to the satisfaction of certain conditions, Section 203 of the Copyright Act permits authors or their successors to terminate copyright assignments and licenses that were made on or after January 1, 1978. Upon termination, all rights in the work that were covered by the grant revert to the author, however any derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after it is terminated, but this privilege does not extend to the preparation of other derivative works after termination.

Josh:
Paramount filed a motion to dismiss, arguing that that the works are not substantially similar because the Yonay article is a work of unprotectable fact.  In order to state a claim for infringement a plaintiff must show substantial similarity between the works’ protected elements.  Determining whether works are substantially similar involves a two-part analysis consisting of the ‘extrinsic test’ and the ‘intrinsic test.’” The extrinsic test “assesses the objective similarities of the two works, focusing only on the protectable elements of the plaintiff’s expression,

Scott:

In its motion to dismiss Paramount argued that in applying the extrinsic test and by filtering out the elements that are not protected under copyright law – that is facts, ideas, scenes faire (which are situations and incidents that flow necessarily or naturally from a basic plot premise) and stock elements – the two works are not substantially similar.   In its motion to dismiss Paramount argues that all elements that are alleged to be similar – the history and operations of the “Top Gun” academy; that the pilots pull off risky aerial maneuvers, that manner of combat training and the tactical discussions the pilots have; descriptions and depictions of fighter jets, including their exorbitant cost; pilots doing push-up exercises; pilots’ use of “call signs” as nicknames and depictions of camaraderie amongst pilots, including bar excursions and games —are reported in the Article as factual.

Josh:
As we predicted, it seems that Yonay’s counsel were ready for Paramount and had evasive maneuvers ready to go.   In reading the district court’s denial of Paramount’s motion to dismiss, the key argument which resonated with the court was, essentially, that it would be contrary to 9th Circuit precedent to dismiss Yonay’s case at such an early stage.  Because the analytical dissection required to separate protectable from non-protectable elements…which also generally involves expert testimony…. and thereafter the determination of substantial similarity between protected elements of works are “usually extremely close issues of fact, the Ninth Circuit generally disfavors dismissals on the ground of substantial similarity at the Rule 12(b)(6) stage.,

Scott:

In its opposition to Paramount’s motion to dismiss, the Yonay’s argue that but for Ehud Yonay’s literary efforts and his story’s evocative prose and narrative, Top Gun and its sequel would not exist. The Yonay’s argue that if Paramount was only interested in facts about the Miramar Naval Air Station, it would have drawn inspiration from the Senate Report Paramount equated Yonay’s article to. The Yonays argue that it was the expressive imagery, startling action, character traits, and themes contained within the original article that were the reason why Paramount optioned the article in the first place.  The Yonay’s point to a list of more than seventy (70) alleged substantial similarities between the original article and the sequel.  That was enough for the court.

Josh:

The court found that here are enough alleged similarities between the article and Top Gun Maverick for reasonable minds to differ on the issue of substantial similarity, including the filtering out of unprotected elements and additional development of the factual record would shed light on the issues pertinent to the Court’s analysis under the extrinsic test.

Scott:

I do think the court made the right call here.  The article is not a humdrum recitation of facts; it is a story.  And while facts themselves are not protectable under copyright, the selection and arrangement of those facts and the manner in which the facts are expressed are protectable.  Given that the Yonays were able to present to the court 70 instances of similarities presumably not based on pure facts, greater exploration into these similarities would be necessary.