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“Top Gun” sequel flies clear of copyright infringement
The box office sensation “Top Gun: Maverick” didn’t just help bring crowds back into movie theaters post-pandemic. It also spurred a copyright infringement lawsuit based on a magazine article published almost 40 years earlier. The case failed to take flight, though, based on the lack of sufficient similarities between the two works.
Plaintiffs attack
Ehud Yonay authored a 1983 magazine article about the United States Navy Fighter Weapons School, or “Top Gun.” It discussed the history, culture and setting of the program and vividly described the experience of flying F-14 aircraft. Yonay focused on two lieutenants, describing their decisions to become fighter pilots and their experiences in naval aviation and the school.
Shortly after publication, Yonay granted Paramount Pictures Corp. all rights to the article for a fixed sum and the promise to credit him in any movies Paramount produced “substantially based upon or adapted from” the article. Paramount released the hit film “Top Gun” in 1986, noting in the credits that it was “suggested by” the article.
After his death in 2012, Yonay’s family members became owners of the article’s copyright. In 2020, they terminated the agreement with Paramount. Two years later, the studio released the sequel “Top Gun: Maverick.”
The Yonays sued Paramount, alleging “Maverick” infringed their copyright. The trial court granted Paramount judgment before trial, and the plaintiffs appealed to the U.S. Court of Appeals for the Ninth Circuit.
Arguments bomb
To establish infringement, plaintiffs must show that the works in question share “substantial similarity in protectable expression.” Plaintiffs generally demonstrate substantial similarity by satisfying both an extrinsic test and an intrinsic test. The extrinsic test looks at the objective similarities of the two works, while the intrinsic test is subjective and considers the similarity of expression from the standpoint of the ordinary reasonable observer. The intrinsic test is reserved exclusively for the trier of fact in a trial (typically a jury).
Because the appeals court was evaluating similarity at the summary judgment stage, before a full trial, only the extrinsic test was relevant. To apply that test, a judge must filter out and disregard the nonprotectable elements.
The judge instead focuses on articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters and sequence of events. If none of the artistic elements in those categories are substantially similar, works nonetheless can be substantially similar if they share the elements’ “selection and arrangement” — the particular way in which the artistic elements form a coherent pattern, synthesis or design.
When assessing similarity in the individual categories, the court highlighted a problem that “pervade[d]” the plaintiffs’ arguments: Although the article contained much original, protected expression, none of it appeared in the film. The plaintiffs identified similarities only by describing both works at “such a high level of abstraction” that the similarities didn’t involve protected expression. “Their claim of substantial similarity fails because what is protected is not similar, and what is similar is not protected,” the court explained.
For example, the plaintiffs pointed to similarities in several facts related to the Top Gun fighter pilot school, such as grueling training and the design of F-14 wings. But factual elements aren’t protected by copyright law. Generalized character traits such as “jocular,” “competitive” or “men’s men” also aren’t protectable.
The plaintiffs’ selection-and-arrangement claims failed, too. The Ninth Circuit found that the shared patterns they described weren’t the original expression in the article but rather unprotectable abstract ideas (for example, pilots being fierce but playful). Giving characters contradictory traits had been done before.
Even if it hadn’t, the court said, the plaintiffs couldn’t claim an exclusive right to ideas or concepts at that level of generality, whether individually or in combination. Granting such exclusivity would remove the ideas or concepts from the “stock of materials” available to others and squelch creativity, contrary to the goal of copyright.
Crash and burn
To prevail on summary judgment, the plaintiffs needed to establish that the expression in “Maverick” was substantially similar to the original expression in the article. For the reasons outlined above, the Ninth Circuit found that it wasn’t and thus affirmed the district court.
Sidebar: Breach of contract claim misfires
The plaintiffs in the “Top Gun” case (see main article) also claimed that Paramount breached its initial agreement with the article author by not crediting him in the sequel. According to the U.S. Court of Appeals for the Ninth Circuit, the agreement required Paramount to credit him in a film if 1) the film was “produced by [Paramount] hereunder,” and 2) the film substantially incorporated the plot, theme, characterizations, motive and treatment of the article or any version or adaptation of it.
The court found that Paramount didn’t breach the agreement because the first condition wasn’t satisfied. It interpreted “produced . . . hereunder” to mean “produced using the rights conferred by this agreement.” Because the sequel didn’t infringe the copyright in the article, the court reasoned, it followed that Paramount didn’t use that copyright — which it received via the agreement — to produce the sequel. The second film, therefore, wasn’t produced under the agreement.
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