As of the writing of this blogpost, Top Gun Maverick is the top grossing film of 2022, having earned $401.8 Million at the box office to date. You may also have heard that shortly after the movie’s release, the family Ehud Yonay, the author whose 1983 “Top Guns” article inspired the original 1986 “Top Gun,” filed suit against Paramount Pictures alleging copyright infringement. The suit alleges that in 2018 Yonay’s heirs acted to recapture the rights to Yonay’s 1983 article, and, without their blessing (aka a license or assignment), Paramount’s 2022 sequel constitutes an infringement of elements of Yonay’s original story.

TALK TO ME GOOSE – WHY DO THEY CLAIM COPYRIGHT INFRINGEMENT?

The suit alleges that Ehud Yonay is the author of the original 1983 “Top Guns” article which appeared in the little known California Magazine. Shortly thereafter, Paramount acquired the rights to the story from Yonay for its 1986 motion picture “Top Gun”, which was a blockbuster success. For years it has been rumored that a Top Gun sequel was in the works. Top Gun: Maverick was originally scheduled to release on July 12, 2019, but was postponed, first to June 26, 2020, and then, after several more delays due to the Covid 19 pandemic, it was finally released on May 27, 2022.

There is a provision in the Copyright Act that allows an author to recapture the copyright to the author’s original material, after a set period of time – in this case between 35 and 40 years after the date the rights were transferred. Those rights can be recaptured by simply serving advance notice of the recapture on the original grantee, and recording that notice with the U.S. Copyright Office. Yonay’s heirs allege that the properly did that in January of 2018, by sending Paramount notice that it was terminating the transfer and recapturing the copyright effective January 24, 2020, and recording that notice  with the Copyright Office.  They contend that on January 24, 2020, the copyright to the Top Guns story reverted to Yonay’s heirs.  The suit alleges that Paramount deliberately ignored Yonay’s recapture of the copyright and proceeded with completion and release of the 2022 Top Gun: Maverick sequel without re-securing the needed rights to the original Top Guns story from Yonay’s heirs.

MAYDAY, MAYDAY, YONAY’S IN TROUBLE

While Yonay’s heirs may not be in a flat spin heading out to sea, we have reviewed the complaint and have more than a few concerns as to whether the complaint for copyright infringement can survive a motion for summary judgment. The first concern is whether Yonay’s heirs have standing to bring the suit in the first place. That is, are they the proper party who is the owner or a registered copyright in the Top Guns article. The second concern is one of timing. Was the film “completed” before the termination of rights that allegedly became effective on January 24, 2020?

DID THE HEIRS SLIDE INTO THE COPYRIGHT OWNER’S SPOT?

As we advised in our August 2019 Blogpost – you can’t bring an action for copyright infringement unless and until you register, or attempt to register, your work with the U.S. Copyright Office. So unless Yonay’s Top Guns article was properly registered with the U.S. Copyright Office, his heirs cannot bring suit. The complaint alleges that Yonay’s Top Guns story “was registered in the U.S. Copyright Office on October 3, 1983 (Reg. No. TX0001213463).” However, a closer look at that copyright registration reveals that this statement is not entirely accurate. Reg. No. TX0001213463 is for a “serial publication” and lists issues of the California Magazine published between February 1983 and January 1984 as being covered under the registration. Thus, the registration does not appear to specifically cover Yonay’s Top Guns story. Further, the owner of the registration is listed as being California Magazine, Inc. Therefore, it does not appear that Yonay, nor his heirs, are the owners of the claimed copyright registration. While Yonay’s heirs may claim that the spot was theirs and they didn’t slide into it, the registration which they claim gets them in the door does not help their case.

NEGATIVE GHOST RIDER, THE PATTERN IS FULL – YONAY’S TERMINATION MAY BE INVALID

Yonay’s heirs claim that Section 203 of the Copyright Act gave them the right to terminate the rights that had previously been granted to Paramount in the 80’s. However, the statute specifically and unambiguously states that the right to terminate a license or transfer of rights in a copyright does not apply to works for hire. The registration upon which Yonay’s heirs rely further indicates that California Magazine, Inc. was an “employer for hire”. So, there is a significant question as to whether Yonay or his heirs even had the right to terminate under section 203 as claimed, since it specfically does not apply to works for hire.

HIT THE BRAKES, AND MAYBE HE WON’T FLY RIGHT BY – TIMING IS CRUCIAL

Filming for Top Gun: Maverick began in May 2018, and it was originally scheduled to release on July 12, 2019. Had things gone as planned, the film would have been released well before the effective date of Yonay’s termination in January 2020. But the release, as often happens with large budget films ,was postponed to June 26, 2020. Then, after several more delays due to the Covid 19 pandemic, it was finally released on May 27, 2022. In this case, hitting the brakes caused the collision, where Yonay may have merely flown by if things progressed on schedule. Yonay’s heirs allege that “Maverick” did not finish the production in 2019, prior to the transfer of the copyright, but rather in May 2021. It is unclear when Paramount officially completed production of Maverick, but that timeline will likely play a critical role in the case.

HOLLYWOOD (PARAMOUNT), YOU LOOK GOOD

While it’s early in the case and many facts have yet to be revealed, Yonay’s heirs are no where near achieving missile lock tone on making a sucessful case against Paramount. If you have questions about copyright matters affecting you, we’d be happy to be your wingman. Contact us to see how we can help you lock in your rights!