Paramount and the heirs to the author of a 1983 magazine story that the original Top Gun was based on are each moving for a federal judge to declare victory in their favor in a copyright lawsuit revolving around the blockbuster sequel.
In a summary judgment motion filed on Monday, the two sides trade arguments over the copyrightability of certain aspects of Ehud Yonay’s article and Top Gun: Maverick director Joseph Kosinski’s inspirations for some parts of the movie alleged to infringe on the writer’s intellectual property.
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As evidence that filmmakers copied parts of his article, Yonay’s heirs, Shosh and Yuval, point to scenes and plot devices in the sequel that were detailed in the story but did not appear in the original. At the top list is a scene at a Navy base bar in which Tom Cruise’s Maverick has to buy a round of drinks for placing his cell phone on the counter.
Paramount maintains that any similarities between the material is a result of drawing from uncopyrightable facts, which were obtained by consulting with the Navy. In a declaration submitted to the court, Kosinski says that he wrote the scene into the movie after he visited a bar on the base and “invoked the Club’s ‘rules,’ thereby requiring me to buy a round for everyone in the bar.” He denies reading Ehud Yonay’s story.
Paramount was sued last year by the Yonays, who alleged that the studio didn’t credit the California Magazine story entitled “Top Guns” that the original movie built on after they reclaimed the rights to the work by taking advantage of a provision in U.S. copyright law that allows authors to terminate licenses after waiting a period of time, typically 35 years. They argue that Paramount made the sequel without securing a new license once the rights to the article reverted back to them in January 2020.
The studio says that it was within its rights because the movie draws on uncopyrightable facts. It says that the Yonays are essentially looking for an “effective monopoly” over stories about the U.S. Navy’s “Top Gun” program to prepare fighter pilots for combat.
“Copyright law does not protect facts or ideas, and it certainly does not allow an author to stake out an exclusive claim to a subject, simply because he came first,” writes Molly Lens, a lawyer for Paramount, in a motion for summary judgment.
Any similarities between the movie and Yonay’s story, the studio says, is a result of overlapping facts in the works. It stresses that it turned to the Navy, which reviewed draft scripts, consulted on plotlines and vetted the accuracy of technical aspects of the movie, instead of the article. Paramount contends, “With the Navy’s partnership, the film hewed as closely as possible to the realities of Top Gun. What Plaintiffs claim PPC derived from the Article, it actually took from real life.”
The Yonays note that Paramount “long considered Yonay’s work to be an expressive copyrightable ‘story'” until losing the rights, at which point it “flip-flopped and renounced its long-held legal position it benefited from for decades.” They counter that an evaluation of substantial similarity involves creative expression and the author’s selection and arrangement of nonfiction content.
“For instance, rather than offer an encyclopedic narration of the naval base operations, Yonay focused on the personal backgrounds and idiosyncrasies of two aspiring fighter pilots to engage his audience and humanize his Story,” writes plaintiff’s attorney Marc Toberoff. “The Story’s Yogi and Possum remained at the center of Yonay’s tale; even as it zoomed out and looked into the past, everything was intentionally organized around them.”
Dismissal in copyright lawsuits typically turn on a comparison of the works’ plots, themes and characters, among various other factors, but the 9th U.S. Circuit U.S. Court of Appeals has recently turned to directing lower courts not to prematurely toss cases. The federal appeals court last year revived a lawsuit against M. Night Shyamalan accusing him of ripping off a 2013 independent movie for his Apple TV+ series Servant, though it was not at the summary judgment stage. The order was issued in a series of other reversals in copyright lawsuits overturning dismissals.
The Yonays argue that similarities that appear in the story and sequel but not in the original Top Gun buttress claims that filmmakers returned to the article for inspiration.
“In the Story’s opening, Yogi and Possum are ‘shot down’ in training and downcast and, in the Sequel, fighter crews are crestfallen when ‘shot down’ by Maverick in training, though no parallel situation appears in Top Gun,” states the filing. “The Story highlights that only the best of the best get invited back to Top Gun as instructors and in the Sequel, Maverick is invited back as an instructor. This detail, too, appears only in the Sequel, but not in Top Gun.”
Yonay also points to other similarities in dialogue, setting and mood, which includes post-war nostalgia “harkening back to a simpler time of old-fashioned patriotism.”
Paramount maintains that any overlap between the works — like the depiction of risky aerial maneuvers and the portrayal of pilots’ social lives — is unactionable under copyright law since they “are reported in the Article as factual.”
U.S. District Judge Percy Anderson last year advanced the lawsuit, pointing to “enough alleged similarities” between the original story and Top Gun: Maverick to survive dismissal. He explained that expert testimony “would aid the court in objectively evaluating similarities in cinematic techniques.”
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