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

On 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 35^th 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. Wall-Street.com, 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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