“I feel the need, the need for a copyright infringement lawsuit.”
Locked on! Top Gun: Maverick targeted by federal court lawsuit.
While actor Tom Cruise has been doing an excellent job of avoiding the crosshairs of old age, Paramount Pictures was not as lucky when it comes to claims of copyright infringement leveled against it following the recent release of Top Gun: Maverick.
The latest installment of Top Gun (originally released in 1986) picks up, more or less, where the original left off but with a 35-year time jump.
In the original, Tom Cruise played daredevil fighter pilot Lieutenant Pete “Maverick” Mitchell (Maverick is his call sign), a bad boy who broke all the rules at Fightertown, watched his best friend die because of his recklessness, fought the bad guys, got the girl, and enjoyed the commercial success of a $357 million gross. In the sequel, Cruise takes on the role of an instructor at the Top Gun fighter pilot school and continues many of the shenanigans that got him into trouble as a student all while watching the international gross now approach a billion dollars.
Both films are based on an exaggerated version of the U.S. Navy’s Top Gun fighter pilot training program and the first film had its origins in a magazine article by writer Ehud Yonay.
In 1983, Yonay wrote an article titled “Top Guns” for California magazine based on his research and interviews with pilots and instructors at the Top Gun U.S. Navy Fighter Weapons School based at Miramar Naval Air Station in northern San Diego County. If you’ve seen either Top Gun movie, you will instantly recognize the similarities between both films and Yonay’s article which describes in considerable detail now familiar fighter pilot personalities and astonishing airborne simulated combat maneuvers.
[If you’re interested, you can read the original article in the May 1983 edition of California magazine at http://www.topgunbio.com/top-guns-by-ehud-yonay/]
Paramount Pictures took note of the article and purchased rights from Yonay to produce the 1986 Top Gun movie starring Cruise, Anthony Daniels, Val Kilmer, Tom Skerritt and Kelly McGillis. It became a hit, the phrase “I feel the need for speed” became part of the vernacular, and everyone lived happily ever after. Well, maybe not everyone.
Yonay died of cancer in 2012 at the age of 71 leaving behind his wife, Shosh, and son, Yuval and in 2018, or so they claim, Yonay’s heirs gave formal notice to Paramount that they were terminating the copyright license of Yonay had given Paramount thirty-five years (or so) earlier.
The Copyright Act controls copyrights in the U.S. and Section 203 specifically allows an author or an author’s living heirs to exercise a “right of termination” of a copyright assignment, license or other grant provided the requirements of Section 203 are satisfied and the notice of termination is effected during a five year period following the end of the thirty-fifth year after publication or forty years after the grant, whichever term ends first. The effect of such a termination is to revert the rights granted back to the author (or the author’s heirs).
Yonay’s heirs have alleged in a copyright infringement complaint they recently filed in the U.S. District Court for the District of California that they complied with Section 203 back in January 2020, more than two years before the eventual release date for Top Gun: Maverick. Thus, they contend, the release of Top Gun: Maverick infringed Yonay’s copyright and they are entitled to significant monetary damages.
Due to the pandemic, the movie allegedly was completed in 2019 but the release was repeatedly pushed back until this summer. Ironically, this oddity of timing may allow Paramount to argue that because it completed the film before the notice of termination, the termination was ineffective for purposes of the lawsuit.
So too, there is an interesting caveat to Section 203 that may come into play with the Yonay heirs’ lawsuit. Section (B)(1) provides that “(a) derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination …” If Top Gun: Maverick is determined to be a “derivative work,” then Paramount would retain rights to it regardless of the effective date of creation of the film or the date of delivery of the termination notice.
Also, Paramount is certain to argue that the heirs lack standing to sue because Ehud never held a valid copyright registration for his article. The only registration on file with the U.S. Copyright Office was held by California Magazine, Inc., the magazine publisher, and it no longer exists. Without a copyright registration, the copyright infringement case may be subject to dismissal.
Why It Matters. The case serves as a useful reminder of several important tenets of U.S copyright law:
Creators (and their heirs) have the right to terminate copyright transfers years after the original transfer was made.
Assignees and licensees are protected from allegations of copyright infringement to the extent that their activities involve derivative use of the original creation.
Copyright infringement lawsuits are predicated on valid copyright registrations.
The case also serves as a useful reminder that anyone launching new products or services should consider the relevance of any prior third-party agreements pertaining to those goods or services still in force and whether the launch might be considered a breach of any of the terms of those agreements.
And the films serve as a useful reminder that you should never fly second seat to a megalomaniacal hot shot with a dangerous disdain for the military command structure and even the most basic flight safety protocols. I don't care how much speed you feel you need.