Despite making an astounding $400 million USD in its global opening week, Paramount’s blockbuster film Top Gun: Maverick is experiencing some legal turbulence. The family of the Israeli writer whose article inspired the original 1986 Tom Cruise film Top Gun is suing film studio Paramount Pictures for copyright infringement over the celebrated sequel. Maverick has had the fourth biggest opening weekend of any film in the Covid-era, brushing shoulders with the likes of blockbusters like Spider-Man: No Way Home, Doctor Strange in the Multiverse Madness, and The Batman.
In 1983, California Magazine published an article by Ehud Yonay called "Top Guns," which told the story of Navy pilots "in a remarkably vivid and cinematic fashion," according to the lawsuit. Ehud Yonay has since passed, but his son and wife are the ones suing Paramount Pictures.
The iconic 1986 Top Gun Film began with Paramount Pictures securing exclusive motion picture rights to Ehud Yonay’s story immediately after its publication. In fact, Yonay’s story was duly credited on the original film, which, according to the lawsuit, “is widely known to have been based on the original story”.
According to the lawsuit, the Yonay’s properly availed themselves of their right to recover the copyright of the original story in accordance with copyright legislation via a statutory notice of termination, effective January 24, 2020. Despite this, “Paramount deliberately ignored this, thumbing its nose at the statute" according to the suit.
Marc Toberoff, the Yonay family attorney, issued a statement arguing that the law gives authors the ability to "financially benefit from their creations and participate in some meaningful way in the fruits of their labor." If the lawsuit moves forward, it could only mean that Paramount would still be able to distribute works derivative of Yonay's original story - but only after obtaining the rights again.
"[Paramount] was silent," Toberoff said. "They did not even attempt for any sum of money to relicense the rights to the story."
According to the lawsuit, Paramount responded to a cease-and-desist letter sent by the Yonays in May only to deny that Top Gun: Maverick was "obviously derivative" of Yonay's magazine story.
Paramount, in a statement to Deadline, responded to the suit saying, "These claims are without merit, and we will defend ourselves vigorously".
If Ehud Yonay’s Story was Originally Published in Australia, would it be Protected by Copyright?
In short you would need to ask:
- Is the original story a type of work capable of attracting copyright protection (that is, a literary, dramatic, musical, or artistic work, a sound recording, film, communication work or a typographical arrangement of published editions)?
- Is the copyright work original (that is, not copied)?
- Is it a “qualifying” work under the Copyright Act 1968 (Cth) (that is, is the author a citizen, resident, or body incorporated under Australian law or the law of a prescribed country?)
- Is the copyright work still within the term of protection?
If the answer was yes to all of the above, then the work is protected by copyright.
In Australia, copyright subsists in an author’s literary work until the end of the period of 70 years from the end of the calendar year in which the author dies.
So, we’ve established that Ehud Yonay’s story attracts copyright protection, but Paramount Pictures turned his story into a film… does that count as copyright infringement?
According to the Copyright Act 1968 (Cth), owners of literary, dramatic, and musical works have exclusive the right to reproduce the work, publish it, communicate it online, adapt it and perform it in public. That means the right to reproduce works and anything derived from the original story vests with Ehud Yonay unless he licensed this right. In this case, Yonay licensed the derivate rights to his story.
Copyright Protection of Derivative Works
There are two ways that derivative rights are protected under copyright law.
First, the derivative work has protection under the copyright of the original work. Copyright protection for the owner of the original copyright extends to derivative works. This means that the copyright owner of the original work also owns the rights to derivative works. Therefore, the owner of the copyright to the original work may bring a copyright infringement lawsuit against someone who creates a derivative work without permission.
Second, the derivative work itself has copyright protection. The creator of the derivative work owns the copyright to the derivative work. This can either be the creator of the original work, or someone else who has obtained a derivative work license from the holder of the original copyright.
The copyright of a derivative work is separate from the copyright to the original work. Therefore, if the copyright holder gives someone a licence to create a derivative work, the holder retains the copyright to the original work. In other words, only the derivative rights are being licensed.
So, from the moment the Yonay’s reclaimed their derivative rights, Paramount Pictures lost the ability to publish Top Gun: Maverick.
It will be interesting to see how Paramount Pictures responds to the suit, given the fact that Maverick’s release date was rescheduled due to COVID.
Copyright can be a daunting area of law. That’s why IP Partnership specialises in protecting your content locally and internationally. Please contact us today for any inquiries regarding your copyrightable work, or if you’ve created anything that requires licensing agreements locally or internationally. Or alternatively, we are here to assist you if you believe someone else is infringing upon your copyright domestically or internationally.
This blog provides general information and is not intended as legal advice specific to your circumstances. Please feel free to seek our professional legal advice if you have any particular questions, concerns, and/or queries.