September 2022

Is Top Gun On The Verge of Being Grounded?

By: Jacob Kim

As our world finds a new form of normalcy following COVID-19, the entertainment industry has begun to release new movies and television shows. One movie has especially grabbed social media’s attention as a must see: Top Gun: Maverick. This movie, starring Tom Cruise and Miles Teller, is a sequel to the 1986 Top Gun film, which was inspired by Ehud Yonay, who died in 2012. While everyone has been rushing to the theatres to see the new release, relatives of Mr. Yonay have been trying to stop the film from being played. On June 6, 2022, relatives of Mr. Yonay filed an intellectual property lawsuit against Paramount Pictures Corporation alleging copyright infringement and seeking injunctive relief and damages.[1]

According to the complaint, Ehud Yonay is the author of the original 1983 “Top Guns” story, from which the 1986 motion picture Top Gun and 2022 sequel were derived.[2] Paramount allegedly secured exclusive motion picture rights to Ehud Yonay’s copyrighted story to film the 1986 film.[3]

Under the Copyright Act of 1976, 17 U.S.C § 203(a), individual authors are allowed to reclaim their copyrights they have transferred after thirty-five years by terminating any prior transfers.[4] To exercise this termination, the original author must send a termination notice to stop any new derivative works or copies.[5] In their complaint, the Yonays claim they properly sent a termination notice to Paramount on January 23, 2018.[6] Thus, on January 24, 2020, the copyright to the “Top Guns” story reverted to the Yonays.

Paramount is likely to invoke two defenses as to why it did not infringe the Copyright Act with the 2022 sequel: the film was sufficiently prepared, and the new film is not a derivative work of the original. Under 17 U.S.C § 203(b)(1), upon the effective date of termination, a derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant.[7] Paramount will likely argue that the 2022 film was prepared before the effective termination date of January 24, 2020, thus not infringing the 1986 license. The main point of contention will be whether Paramount prepared the new film prior to the license termination. The Copyright Act does not define what it means to have a derivative work prepared before its termination, or what is considered prepared versus unprepared. However, Paramount will likely prove that it prepared the sequel prior to January 2020, thus being protected under the original license agreement.[8]

Paramount’s primary argument will be that the film was completed in 2019. According to sources, Top Gun: Maverick was scheduled to be release on July 12, 2019. However, because of COVID-19, Paramount postponed the premier for a later date.[9] Assuming Paramount was prepared to release the movie in 2019, Paramount would have a strong case for claiming it prepared the sequel prior to the termination date of January 2020.

So, will Paramount have to pay damages to the Yonay estate? Or might it potentially have to stop reproducing or distributing the 2022 sequel? Courts are often reluctant to enjoin distribution of works in situations like this.[10] However, Paramount might be forced to pay a licensing amount set by the court.[11] It will all come down to whether Paramount prepared the movie before or after January 24, 2020.[12]

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[1] Shosh Yonay et al v. Paramount Pictures Corporation et al, No. 22-CV-03846 (C.D. Cal. June 22, 2022), https://ecf.cacd.uscourts.gov/doc1/031137946118.

[2] Id.

[3] Id.

[4] 17 U.S.C. § 203(a)(3).

[5] Id. § 203(a)(4).

[6] Shosh Yonay et al, No. 22-CV-03846.

[7] 17 U.S.C § 203(b)(1).

[8] Rachel Reed, Highway to the danger zone, Harvard Law Today (Jun. 8, 2022), https://hls.harvard.edu/today/highway-to-the-danger-zone/.

[9] Mike Murphy, Paramount delays ‘Top Gun: Maverick’ until May 2022 due to coronavirus concerns, Media (Sept. 2, 2021), https://www.marketwatch.com/story/paramount-delays-top-gun-maverick-until-may-2022-due-to-coronavirus-concerns-11630545152.

[10] Rachel Reed, Highway to the danger zone, Harvard Law Today (Jun. 8, 2022), https://hls.harvard.edu/today/highway-to-the-danger-zone/.

[11] Id.

[12] Id.