It’s no secret that Hollywood has become enamored with rebooting classics from the 80’s, using the same bankable leads and hoping to strike gold once again. Lucasfilm brought back Harrison Ford for the 2023 film Indiana Jones and the Dial of Destiny, and Columbia Pictures convinced Bill Murry and Dan Aykroyd to return in the recently released Ghostbusters: Frozen Empire. Undoubtedly, the most successful of these reboots has been Paramount Pictures’ 2022 blockbuster Top Gun: Maverick, which grossed $1.5 billion, making it the highest grossing film of Tom Cruise’s career.

However, Paramount has found that rebooting classics can raise some unique copyright issues, especially when the Copyright Act allows authors to terminate copyright assignments or licenses 35 years after the grant. This means that, like the pilots in the film, sometimes “time is your greatest enemy.” But, in Yonay v. Paramount Pictures, a recent lawsuit alleging that Top Gun: Maverick infringed the rights of the author of the original 1983 magazine article that inspired the franchise, the Court reminded the plaintiffs that one can never overlook the copyright dogfighting basics and dismissed their claim because they did not show infringement of any protectable elements.

The Fascinating IP History of Top Gun

As fans of the franchise know, Top Gun, or more properly the United States Navy Fighter Weapons School, is a real training program established in 1969 to teach air combat maneuvering tactics to select naval aviators. But, few fans know that the 1986 movie was inspired by an article about the training program written by journalist Ehud Yonay.

In May 1983, Yonay published an article in California magazine entitled “Top Guns,” which detailed the experiences of real-life F-14 pilot Alex Hnarakis and his radar intercept officer, as they navigated Navy Fighter Weapons School. That article included information about the history and development of the school, aerial combat exercises, Naval Air Station Miramar in San Diego, and even the “officer’s club,” where pilots go for drinks and entertainment. Just a month after that article came out, Yonay assigned the motion picture rights of his article to Paramount.

In May 1986 Paramount released Top Gun, starring Tom Cruise as Pete “Maverick” Mitchell and Anthony Edwards as Nick “Goose” Bradshaw as they train at Top Gun, engage in competitive banter with the other pilots, and even take time to carouse at the local bar. Per Paramount’s agreement with Yonay, Yonay received a credit on the film. The 1986 Top Gun movie, of course, became a huge hit and has only increased in popularity over time.

Paramount announced development of a sequel in 2010, but the project was stalled until 2017 when production eventually resumed. In 2018, thirty-five years after Yonay granted motion picture rights to Paramount, Yonay’s heirs decided to exercise his prerogative under 17 U.S.C. § 203 and sent Paramount a notice that they were terminating Paramount’s rights to the 1983 article. Paramount did not re-negotiate or re-license rights to Yonay’s article.

In May 2022, Paramount released Top Gun: Maverick, a sequel to the 1986 film with Tom Cruise reprising his role as Maverick, who is forced to return to Top Gun, train a new class of pilots for a deadly mission, and confront the past through a clash with Goose’s son.

Yonay’s Copyright Claim Shot Down

A month after the movie’s release, Yonay’s heirs brought a suit in the Central District of California federal court against Paramount, claiming that the 2022 movie was derived from Yonay’s article and infringed Yonay’s rights under copyright law. The plaintiffs argued that the 2022 movie was substantially similar to the article because it had similar plots, sequences of events, themes, moods, characters, and settings. The Court, however, rejected these claims on the basis that any similarities are based on unprotected elements, namely historical facts and scènes à faire, over which Yonay cannot claim any copyright.

To establish a copyright infringement claim, a plaintiff must show that the works are “substantially similar in their protected elements.” Because not everything in a copyrighted work is protected under copyright law, often the first step in a copyright analysis is to filter out the protected elements from the unprotected elements. General ideas, concepts, and principles are statutorily excluded from copyright protection, meaning that copyright law protects the creative expression but not general ideas behind the work or basic plot points. Likewise, courts have long held that scènes à faire, that is “situations and incidents that flow naturally from a basic plot premise,” are also unprotectable. Historical facts and events are not protected either because they lack the requisite creativity and originality to fall under copyright doctrine.

In Yonay v. Paramount Pictures, the Court applied these basic principles and held that the plaintiffs’ claims could not even get off the flight deck. First, Top Gun is a real fighter pilot school, and Yonay cannot claim copyrights over any related historical and factual elements, including pilot training, missions, and aerial exercises. The Court found that the remainder of Yonay’s claimed similarities—such as the mood on a naval air base and the aviation “caste system”—were merely stock themes and scènes à faire that flow naturally from these historical elements and basic plot premises. Ultimately, the Court held that the lawsuit was writing checks the evidence couldn’t cash.

More Bogeys on the Radar

While Paramount successfully evaded this suit, there are still other bogeys in the air. In February, Barry Tubb, the actor who played “Wolfman” in the 1986 Top Gun movie has sued Paramount over the use of his likeness, which appears briefly in the 2022 film in a group photo of the fictional 1986 Top Gun class. Although Paramount has moved to dismiss, time will tell whether it is out of the danger zone.

Sources

Yonay v. Paramount Pictures Corp., Case No. CV 22-3846 PA (GJSx), 2024 U.S. Dist. LEXIS 63464 (C.D. Cal. Apr. 5, 2024)

17 U.S.C. § 203

Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183 (2021)

Feist Publ’ns, Inc. v. Rural Tel.  Serv. Co., 499 U.S. 340 (1991)

Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930)

Corbello v. Valli, 974 F.3d 965 (9th Cir. 2020)