Top Gun: Maverick is the year’s highest-grossing film at the box office, but there is a copyright dispute brewing off the big screen. As audiences are aware, Top Gun: Maverick is the widely-anticipated sequel to 1986’s Top Gun, but it is likely less well known that the original film was inspired by an article. In 1983, California magazine published an article called “Top Guns” by Ehud Yonay, profiling pilots at San Diego’s Navy Fighter Weapons School in Miramar, then a naval air station and training base.
Weeks later, on May 18, 1983, Paramount secured the motion picture rights to “Top Guns” via an assignment of rights, and the credits in 1986’s Top Gun even included the following: “Suggested by Ehud Yonay’s article ‘TOP GUNS’ in California Magazine.” In 2012, Mr. Yonay passed away.
Fast forward to June 6, 2022, when Mr. Yonay’s widow and son filed a lawsuit against Paramount in the U.S. District Court for the Central District of California (ten days after the Top Gun Maverick’s US release). The Yonays argue they terminated Ehud Yonay’s assignment of rights by sending Paramount a statutory notice of termination and that the copyright in the “TOP GUNS” story reverted back to them on January 24, 2020. Their complaint alleges copyright infringement and seeks a judicial determination that Paramount does not have the rights to make a sequel based on either “Top Guns” or 1986’s Top Gun as derived from the original story. The Yonays also seek an injunction ordering Paramount be stopped from producing, exploiting, or distributing the sequel and any ancillary products.
Under 17 U.S.C. § 203(a), an author (or the author’s heirs) can terminate a copyright transfer or license upon the satisfaction of certain conditions. This section only applies if the transfer or license was granted on or after January 1, 1978 and if the work is not a work for hire. In order to terminate a transfer or license, the author must serve advance notice in writing. Such notice must comply with signature, content, form, service, and recording requirements under the statute and Copyright Office regulations. In theory, this section provides authors a potential option to renegotiate a grant or license by terminating the initial grant.
Section 203 limits the option to terminate for within a 5-year window beginning 35 years after the grant. The termination also cannot take effect until at least two years after written notice. Under this timeline, the Yonays served notice of termination on January 23, 2018, with an effective termination date of January 24, 2020.
While a termination does not affect a derivative work prepared pursuant to the initial grant (i.e. the original 1986 Top Gun) prior to termination, it does prevent preparation of new derivatives based on the original work. According to the Yonays’ complaint, the new sequel is derived from “TOP GUNS” but Paramount failed to re-acquire rights in the story prior to releasing Top Gun: Maverick. Paramount denies the sequel is derived from the original story.
Paramount and the Yonays also dispute whether Top Gun: Maverick was completed prior to January 24, 2020 (the termination notice’s purported effective date) and would thus potentially qualify as an authorized prior derivative work. Paramount announced plans for Top Gun sequel back in 2010 and reportedly filmed the sequel between 2018 and 2019 (the film’s release was delayed due to the COVID-19 pandemic), but post-production work reportedly occurred through 2020.