Has Paramount Pictures gone maverick?

Allegations of copyright infringement made over Top Gun: Maverick

News broke last week that copyright infringement proceedings have been filed in California against Hollywood heavyweight Paramount Pictures: Yonay v. Paramount Pictures Corp., 22-cv-03846, US District Court, District of Central California (Los Angeles). The claim relates to the wildly successful Top Gun sequel, Top Gun: Maverick.

The story

In April 1983, author Ehud Yonay published a magazine article called “Top Guns” that told the high-octane story of the jet pilots at the US Navy Fighter Weapons School in San Diego (aka Top Gun). Paramount Pictures quickly secured motion picture rights to the story, which inspired the 1986 Tom Cruise movie of (almost) the same name (and a litany of memorable one-liners). Yonay received a writing credit for the article on the original film, although the screenplay itself was written by others.

Then, in 2018, Yonay’s heirs (his wife and son, the author having by then passed away) served on Paramount a termination notice under section 203 of the United States Copyright Act of 1976 (17 U.S.C.). Under this statutory provision, authors (and when they are dead, their heirs) have the right to terminate a grant of copyright after at least 35 years has passed, by giving two years written notice. Upon the effective date of the termination, the licence or transfer ends and the related rights (in the United States at least) revert to the author. Termination of a copyright licence or transfer in reliance on section 203 can be invoked notwithstanding any other agreement to the contrary.  

So while, on the face of it, a deal might give a studio like Paramount Pictures film rights to a story in perpetuity, a statutory limit applies in the United States: after a certain period of time, copyright owners in a work may recover the underlying rights by way of a termination notice.  

There is no equivalent provision under New Zealand law (or indeed most other countries). Section 22 of the Copyright Act 1994 provides that copyright in a literary work expires at the end of the period of 50 years from the end of the calendar year in which the author dies. Until that point, copyright in the work can be licenced by the owner and will be subject to the terms of that licence, including as to when and how the licence can be terminated. Under section 111 of the Copyright Act, that licence is binding on the successors in title to an author’s copyright.

The Yonays allege that by virtue of their termination notice, copyright in “Top Guns” reverted to them on 24 January 2020. They argue that from that date it was them, and not Paramount Pictures, who owned the underlying rights to make any new movies based on “Top Guns” (although that wouldn’t prevent Paramount from continuing to distribute works created when it owned the copyright, such as Top Gun).

Preliminary production on Top Gun: Maverick began in May 2018 and wrapped around April 2019. It was originally scheduled to open in cinemas in June 2020. However, the Covid-19 pandemic delayed its release twice – first to July 2021 and then finally to 27 May 2022. It doesn’t appear that the film was reshot during the pandemic, but director Joseph Kosinski reportedly supervised the editing and post-production work during that period.

The lawsuit

On 6 June 2022, the Yonays filed proceedings asking the Federal Court in California to immediately order Paramount to stop distribution of Top Gun: Maverick (and “further sequels”). They also seek a ruling that Top Gun: Maverick is derivative of “Top Guns”, that Paramount did not have the rights to make and distribute the sequel, and that they be awarded unspecified monetary damages.

The Yonays allege that Top Gun: Maverick is derived from the “Top Guns” story.  And they maintain that Top Gun: Maverick was completed in May 2021, after the copyright for “Top Guns” had reverted to them, meaning that Paramount needed to obtain a new licence from them to make the 2022 sequel. They say that Paramount did not obtain their permission to make Top Gun: Maverick or pay them any compensation, and deliberately ignored their notice of termination.

Their lawyer, Marc Toberoff, summed it up for the press: “Much as Paramount wants to pretend otherwise, they made a sequel to Top Gun after they lost their copyright.  As Maverick would say: ‘It’s time to buzz the tower’”.

(In an interesting side note, Toberoff – an experienced copyright attorney – recently filed termination notices against Disney on behalf of the heirs of five Marvel comic-book authors.  Disney is defending the claims.  He also represents the original script writer of Friday the 13th, who is reportedly disputing ownership of the character “Jason Voorhees”.)

Paramount Pictures has responded publicly but briefly to the allegations, saying that the claims are “without merit” and that it will defend its position vigorously.  

The issues

The claim against Paramount has only just been filed. However, already two issues look important to the outcome of the case:

• Is Top Gun: Maverick based on or derived from the original “Top Guns” article sufficiently to breach copyright in the article? Because, if not, it doesn’t matter that the Yonays now own that copyright.

The Yonays say that it is obviously derivative. Paramount denies this. Certainly, the original article is not the screenplay – and Paramount might argue that “Top Guns” amounts to nothing more than a story idea that has been sufficiently transformed by Paramount in Top Gun: Maverick to become its own, entirely new work. “Ideas” alone are not capable of being protected by copyright.  

In New Zealand, the test would be whether Paramount has copied a substantial part of Yonay’s “Top Guns”. This is not a quantitative test (i.e., how much has been copied) – it is a qualitative one (i.e., has the essence of the work, usually the thing that makes it memorable, been copied). The credits for Top Gun: Maverick make no mention of Ehud Yonay or the original “Top Guns” article.  But the Yonays maintain that Paramount’s Top Gun franchise wouldn’t exist at all without Ehud Yonay’s “literary efforts and evocative prose and narrative”. In other words, would there even be a sequel without the original article, which plainly inspired the original Top Gun movie (and was credited as such)?

• Was Top Gun: Maverick completed before the time copyright in the “Top Guns” article reverted to the Yonays?  Because, if it was, then Paramount was entitled to make the movie under its original licence.

The production timeline is likely to become important. The notice of termination had an effective date of 24 January 2020.  Paramount argues that the film was “sufficiently completed” in 2019 and, in any case, prior to the termination date. The Yonays allege that the movie wasn’t finished until 8 May 2021 – more than a year after the termination notice had taken effect. So, what does it mean for a film to be completed? And what is the relevance of forced delays caused by a global pandemic?

It will be some time before the next steps in this proceeding are taken – but there is a lot at stake for Paramount. Top Gun: Maverick earned some NZ$850m globally in its first 10 days of release and is on track to being one of the highest grossing films of 2022.

At this early stage it’s hard to comment on which way the case will go – or even whether it will make it to trial. But we will be following the case so watch this space. And, in the meantime, if you have any questions about copyright licensing or infringement in New Zealand, please contact us.

‍

Social media image credit: Rod Long