IP Law Daily, COPYRIGHT NEWS—Writer’s heirs have no loving feeling for Top Gun remake, (Jun 7, 2022)

By Matthew Hersh, J.D.

The sequel purloins the story on which the original movie was based, the author’s son and widow contend.

In a case that may test the limits of an author’s right to claim ownership of a dramatic plot and written characters, the heirs of the writer whose magazine story was allegedly the basis for the original Top Gun movie have sued Paramount Pictures over the remake. The copyright infringement lawsuit, filed in the federal district court in Los Angeles, notably bears the legal support of the influential—and controversial—former federal jurist Alex Kozinski. Paramount Pictures has denied the claims and contended that it will “defend ourselves vigorously” against the lawsuit (Yonay v. Paramount Pictures Corp., June 6, 2022).

The complaint was brought by the widow and son of Shosh Yonay, an Israeli writer who penned a 1983 article in California magazine about the activity on a Naval training base. The article, which readers can easily find reproduced with a Google search (it is not clear whether the reproductions are licensed, so they are not linked here), tells the story of two pilots, or “Top Guns,” singling out in particular a hotshot pilot code named “Yogi” and his radio intercept officer “Possum” as they are hammered into a team. While the story is a nonfictional account, the story “humanized and energized its subject,” the heirs contend, in a manner that was so compelling that Paramount “immediately sought to lock up exclusive film rights” in the story, resulting in the 1986 box office smash Top Gun.

But even though the heirs regained rights to the underlying story in 2018 by means of a termination notice, the heirs contend, Paramount did not come back to them when making the sequel. Instead, the heirs contend, Paramount pushed ahead with the 2022 sequel without securing anew the rights to the underlying story. Because the original movie was based on the 1983 magazine story, the heirs contend, “it naturally follows” that the 2022 sequel, as well, was derived from the original story. The authors seek declaratory and injunctive relief as well as monetary damages.

Commentary. While academic legal commentary is likely to be forthcoming about the lawsuit in recent days, it would appear likely that the lawsuit’s chance of success turns, at least to a large part, on the extent to which it indeed “naturally follows” that the sequel was derived from the original story. The complaint does not spell out in detail the precise manner in which the sequel purloins either the plot or the specific characters as they were developed in the original magazine article.

To be sure, lawsuits over unauthorized sequels have sometimes succeeded. For example, in 2010 the Second Circuit famously endorsed a trial court’s preliminary finding (though it disagreed on the remedy) that an author had infringed on Catcher in the Rye by writing a sequel that used plot elements of the original—and also purloined the Holden Caulfield character himself—without the permission of J.D. Salinger’s heirs. Here, of course, the heirs do not claim ownership of the original Top Gun movie itself, but of the nonfictional story on which it was based, making their claim one additional step removed and therefore arguably more difficult. Whether the heirs can show that the sequel borrowed from specific plot elements and characters as they were developed in the 1983 article—and that those elements were themselves invented by the author, as opposed to being a faithful recounting of true historical events—remains to be determined by the courts.

The Case is No 2:22-cv-03846.

Attorneys: Marc Toberoff (Toberoff and Associates PC) for Shosh Yonay and Yuval Yonay.

Companies: Paramount Pictures Corp.

News: Copyright CaliforniaNews GCNNews