‘Top Gun’ Copyright Lawsuit Against Paramount Survives Dismissal

A judge has refused to dismiss a copyright lawsuit from the heirs to the author of a 1983 magazine story that the original Top Gun was based on that accused Paramount of illegally shutting them out of the sequel.

U.S. District Judge Percy Anderson found on Thursday that the suit pointed to enough similarities between the story and Top Gun: Maverick to survive dismissal. “Defendant’s primary argument in its Motion to Dismiss is that Plaintiffs have not sufficiently pled in their [complaint] that the Article and the Sequel are ‘substantially similar,’” reads the order. “The Court disagrees.”

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Paramount acquired the film rights to Ehud Yonay’s California Magazine story in 1983 immediately following publication. In June, Paramount was sued by the heirs to Yonay. Shosh and Yuval Yonay argued that they reclaimed their rights to the article under a provision in copyright law that allows authors to terminate licenses after waiting a period of time, typically 35 years. They said that the rights to the story reverted back to them in January 2020 after sending Paramount a notice of termination, but that the studio “deliberately ignored this, thumbing its nose at the statute.”

Paramount has maintained that the sequel was “sufficiently completed” prior to the termination date. In a motion to dismiss the lawsuit, it also stressed that the story at issue is a nonfiction piece that shares no similarity with the “narrative action movie about a fictional veteran pilot.” The Yonays countered with a list of more than 70 alleged similarities between the article and sequel.

Anderson sided with the Yonays in an order advancing copyright infringement, breach of contract declaratory relief claims. “Here, the Court finds that there are enough alleged similarities between the Article and the Sequel for reasonable minds to differ on the issue of substantial similarity, including the filtering out of unprotected elements,” the order reads.

Dismissal in copyright suits typically turns on a comparison of the works’ plots, themes, and characters, among various other factors, but the 9th Circuit U.S. Court of Appeals has recently turned to directing lower courts not to prematurely toss cases. In February, the federal appeals court revived a lawsuit against M. Night Shyamalan accusing him of ripping off a 2013 independent movie for his Apple TV+ series Servant. It found that dismissal at such an “early stage of the case was improper” because “reasonable minds could differ” on whether the stories are substantially similar.

“This is a case in which discovery could shed light on [the] issues that actually matter to the outcome,” reads the order. “In particular, expert testimony would aid the court in objectively evaluating similarities in cinematic techniques … determining the extent and qualitative importance of similar elements between the works, and comparing works in the different mediums of film and television.”

In allowing the Yonays’ lawsuit to proceed, Anderson pointed to the 9th Circuit disfavoring dismissals of lawsuits on the grounds of lack of substantial similarity at early stages of litigation. He concluded that “additional development of the factual record would shed light” on issues relating to whether the works are similar enough to constitute copyright infringement.

The judge also advanced a declaratory relief claim seeking an order that the sequel is a derivative of the article because it “largely rises and falls with Plaintiffs’ copyright infringement claim.” So does the breach of contract claim, Anderson found.

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