Don't think, just do (within your rights) 3 min read
The long-awaited sequel to 1986's Top Gun, in which Tom Cruise reprises his role as US navy pilot Pete 'Maverick' Mitchell, has taken the global box office by storm. However, whether the studio behind the film had the necessary rights to make it is now the subject of a lawsuit. The family of the Israeli writer Ehud Yonay, whose 1983 magazine article 'Top Guns' is said to have inspired the 1986 film, has filed a complaint claiming that Paramount Pictures knowingly failed to reacquire the requisite rights to Yonay's story before releasing the blockbuster sequel. We take a look at the lawsuit and what it means for you.
Key takeaways
- In Australia, unlike in the US, authors do not have an inalienable right to 'recapture' the copyright to their creative material by terminating without cause a prior transfer of those rights. Nonetheless, the Top Gun copyright infringement lawsuit is a timely reminder to organisations to ensure that they hold the necessary rights to any IP used in their business and retain rights in relevant foreign jurisdictions.
- In particular, film producers and other content creators should carefully consider whether they have retained all necessary IP rights before embarking upon a project, especially if they are seeking to adapt, or otherwise make use of, existing copyright material.
Who in your organisation needs to know about this?
Copyright holders; in-house counsel at film and media production companies; filmmakers and other content creators
Unpacking the Top Gun lawsuit
Earlier this year, Ehud Yonay's heirs, Shosh Yonay and Yuval Yonay, brought a complaint against Paramount Pictures regarding the 2022 film Top Gun: Maverick. According to the complaint:
- Ehud Yonay was the author of an original story entitled 'Top Guns', published in May 1983 in California magazine. The story, which inspired the subsequent 1986 film, was based on the personal experiences of two pilots in an elite Navy fighter squadron. Shortly after it was published, Paramount secured exclusive motion picture rights to the story, which in turn led to the release of the now-iconic 1986 film starring Tom Cruise.
- The US Copyright Act of 1976 provides authors with an inalienable right to 'recapture' the copyright to their creative material, albeit subject to a considerable waiting period, by statutorily terminating a prior transfer of the relevant rights. Accordingly, in 2018, Ehud Yonay's heirs issued a formal notice terminating the grant of rights to Paramount, with the effect that as of 24 January 2020, the Yonays were the sole owners of the US copyright in the original story.
- In 2022, notwithstanding the termination of its rights to the story, Paramount released Top Gun: Maverick, which the Yonays allege had not been completed until over a year after they had terminated Paramount's rights.
- The Yonays claim that the sequel, like the 1986 film, is derived from the original story and, further, contains 'key elements' that are 'substantially similar' to those in the story. Accordingly, they say that Paramount's exploitation of the sequel constitutes 'ongoing intentional infringement of the Yonays' copyright'.
According to the complaint, Paramount previously denied that 'Top Gun: Maverick' is derivative of the story and claimed that the sequel was 'sufficiently completed' by 24 January 2020, this being the effective termination date of its grant of rights to the story. On 26 August 2022, Paramount filed a motion to dismiss the complaint on the basis that there is 'no legally cognizable substantial similarity as a matter of law' between the story and the sequel film. According to the motion, 'any similarity between these vastly different works derives from the fact that Top Gun is an actual naval training facility'. That being the case, the motion asserts that the Yonays 'do not have a monopoly over works about Top Gun'.
The lawsuit comes as part of a wave of high-profile copyright infringement claims in the arts and entertainment industries, including against Mariah Carey concerning her hit song 'All I Want For Christmas Is You' and by Netflix against the creators of a concept album entitled Unofficial Bridgerton Musical.
Actions you can take now
- Organisations should carefully consider whether they have all necessary IP rights before embarking upon a project, particularly if they are seeking to adapt, or otherwise make use of, existing copyright material, and seek expert advice as needed – especially as to whether law in foreign jurisdictions might impact on assignments already granted.