IP Law Daily, COPYRIGHT NEWS: Supreme Court asked to clarify standard for substantial similarity in 'Top Gun' movies case, (Jul 20, 2026)

By Carolin Dennis, B.Sc., LL.B., LL.M.

The petition for a writ of certiorari alleges the Ninth Circuit’s decision presents an openly acknowledged circuit conflict on an issue of fundamental importance: the proper test for comparing an allegedly infringing work to the original.

Shosh Yonay and Yuval Yonay filed a petition for a writ of certiorari, urging the U.S. Supreme Court to review the judgment of the Ninth Circuit that affirmed the district court’s grant of summary judgment for Paramount Pictures Corporation on the Yonays’ copyright infringement claim involving the sequel to the original “Top Gun” movie, “Top Gun: Maverick.” The question presented by the Yonay’s petition is whether courts may decide for themselves that a copyrighted work and an allegedly infringing work are not substantially similar, and grant judgment, without considering how an ordinary observer would perceive the works as a whole (Yonay v. Paramount Pictures Corp., No. 26-61 (U.S. Jul. 10, 2026)).

In 1983, Ehud Yonay published a story in California Magazine about an elite training school for naval aviators. Titled “Top Guns,” the story captured the imagination of the public and Paramount Pictures Corporation (Paramount). Paramount rushed to purchase the exclusive rights to turn “Top Guns” into Top Gun, the 1986 blockbuster movie starring Tom Cruise and Val Kilmer. This case arises from Paramount’s film adaptations of Ehud Yonay’s story, one authorized and the other not.

Ehud Yonay died in 2012. In 2020, the copyright in “Top Guns” vested in his widow, Shosh Yonay, and his son, Yuval Yonay (collectively, Yonays) and they terminated Paramount’s rights under 17 U.S.C. §203(a)(3), which allows an author’s statutory heirs to terminate copyright grants made by the author. Two years later, Paramount released “Top Gun: Maverick,” a sequel to Top Gun. As a sequel, Maverick naturally incorporated Top Gun’s extensive appropriation of Yonay’s story. Maverick naturally exploited elements of Top Gun and Yonay’s underlying work. Nevertheless, Paramount did not attempt to relicense Yonay’s story.

In June 2022, shortly after the release of “Top Gun: Maverick” (Maverick), the Yonays filed a complaint against Paramount in the Central District of California for copyright infringement and breach of contract. The district court rejected the Yonays’ argument that Paramount infringed by copying the story’s overall “selection and arrangement” of protected and unprotected elements. The district court recognized that substantial similarity may be based on a combination of elements, even if those elements are individually unprotected. However, it concluded that, because the “Top Guns” story and Maverick did not share the “same combination of unprotected elements,” it could not find substantial similarity. The Ninth Circuit concluded that the Yonays had not shown that Maverick was “substantially similar” and affirmed the district court’s grant of summary judgment for Paramount.

According to the petition, the Ninth Circuit in this case applied its distinctive two-step approach to copyright infringement. At the first step, the court applies a threshold “extrinsic test.” Under that test, the court must dissect the asserted copyrighted work into its component parts (e.g., its plot, themes, dialogue, and mood); filter out any unprotectable elements; and compare what remains of each component one-by-one to the corresponding components of the accused work. If and only if the court determines that those individual components are “substantially similar,” the case proceeds to the second step of the analysis. At that second step, the “intrinsic test,” a factfinder assesses the works’ overall similarity from “‘the standpoint of the ordinary reasonable observer.’” However, the Ninth Circuit started and ended its analysis with the threshold “extrinsic test.” The Ninth Circuit acknowledged that the story “Top Guns” contains “much original, protected expression.” However, after dissecting the work into its component parts, it concluded that Yonays could not “show meaningful similarities in any of those” individual components. Accordingly, it affirmed the district court’s grant of summary judgment without ever stopping to consider whether an ordinary observer would or a jury could find the creative elements of the asserted and accused works similar as a whole (see ‘What is protected is not similar, and what is similar is not protected’: Lawsuit over Top Gun sequel goes down in flames, (Jan. 5, 2026)).

The Yonays petitioned for rehearing en banc, urging the Ninth Circuit to replace its two-part extrinsic-intrinsic test with the ordinary-observer standard applied by other circuits, but the petition was denied.

The Yonays contended that this case exemplified the Ninth Circuit’s test for evaluating “substantial similarity” in copyright cases and the conflict between that approach and the test employed by other circuits. In holding that Paramount’s Top Gun sequel, Maverick, lacked sufficient similarity to the “Top Guns” story that undisputedly inspired the original Top Gun film, the Ninth Circuit employed a balkanized, element-by-element approach. It broke the works down into their individual components, parsing each into discrete elements like plot, characters, and dialogue. It then compared those components, one-by-one, in isolation. Moreover, it undertook that dissective comparison without ever considering how ordinary observers would perceive the similarities between the works as a whole.

The Yonays argued that the Ninth Circuit’s “extrinsic test”—the only part of the Ninth Circuit’s two-part analysis that the court applied at summary judgment—conflicts sharply with the approach taken by the Second, Third, Fifth, Seventh, and D.C. Circuits. The Second, Third, Fifth, Seventh, and D.C. Circuits assess substantial similarity using the holistic “ordinary observer” test. The Ninth Circuit itself has recognized the conflict between its approach and the Second Circuit’s, explaining that the “substantial similarity test” applied in the Second Circuit, unlike its own test, “does not differentiate between extrinsic and intrinsic analysis.” Because the intrinsic part of the two-part analysis is “‘uniquely suited for determination by the trier of fact,’” the Ninth Circuit has held it “will not second-guess” a jury’s verdict “based on an application of the intrinsic test.” The result is that “while defendants may appeal infringement verdicts under the extrinsic test, plaintiffs have no meaningful way to seek review of unfavorable judgments.” Therefore, the Ninth Circuit’s extrinsic test substantively disfavors copyright holders, too.

The petition noted that infringement is at issue in almost every copyright case. However, the two circuits that hear the most of those cases, the Second and Ninth Circuits, are on opposite sides of the split. In circuits that apply the ordinary-observer test at all stages of a copyright-infringement case, that long-settled right to jury determinations is well protected. Thus, the Second Circuit has “frequently said that because substantial similarity is a fact-intensive question, it is generally an issue reserved for a jury.” By contrast, the Ninth Circuit does not even consider an ordinary observer’s perspective at summary judgment. Thus, the Ninth Circuit’s approach burdens copyright holders’ Seventh Amendment rights.

The petition also noted that one of the lawyers representing the Yonays is Alex Kozinski, who formerly was a prominent judge on the Ninth Circuit. The petition contends that the Ninth Circuit’s dissective approach led it to disregard the obvious and substantial similarities in the works’ overall look and feel—similarities so obvious that Paramount credited Yonay in the original Top Gun for inspiring the film’s story. Had the Ninth Circuit applied the ordinary-observer test used by the plurality of circuits, it would not have lost sight of the forest for the trees and would have remanded the case for trial, according to the petition. Therefore, the Yonays have asked the U.S. Supreme Court to intervene and to resolve the circuit split because the test for the central issue in copyright-infringement cases—substantial similarity—should not vary with the happenstance of where the case arises nor should the outcomes.

The Case is Dkt. No. 26-61.

Attorneys: Jeffrey Alan Lamken (MoloLamken LLP) for Shosh Yonay.

Companies: Paramount Pictures Corp.

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