District court denies motion picture studio’s motion to dismiss copyright infringement and breach of contract claims over film Top Gun: Maverick, finding that plaintiffs had alleged enough similarities between their magazine article and defendant’s film for reasonable minds to differ on issue of substantial similarity.

The heirs of author Ehud Yonay sued motion picture studio Paramount Pictures for copyright infringement, breach of contract and declaratory relief in California federal court, alleging that they had reclaimed their rights to Yonay’s 1983 magazine article about U.S. Navy pilots, and that Top Gun: Maverick, the 2022 sequel to the 1986 film Top Gun, is derived from and substantially similar to Yonay’s article.

In 1983, Yonay assigned his rights in the article to Paramount, which then produced the original Top Gun movie. In 2018, plaintiffs sent Paramount a termination notice pursuant to Section 203 of the Copyright Act, which allows authors to terminate licenses between 35 and 40 years after the grant. Plaintiffs asserted that the termination was effective January 24, 2020, prior to the release of Top Gun: Maverick in 2022.

The district court denied Paramount’s motion to dismiss on substantial similarity grounds. The court explained that, when assessing substantial similarity as a matter of law, courts apply the extrinsic test rather than the intrinsic test, which “examines an ordinary person’s subjective impressions of the similarities between two works” and “is exclusively the province of the jury.” Under the extrinsic test, the plaintiff has the burden of identifying the sources of alleged similarity. Then, the court must carry out an “analytical dissection,” including by filtering out unprotectable elements such as familiar stock scenes, to decide whether there is a substantial similarity. The court found that plaintiffs alleged enough similarities for reasonable minds to differ, as the Ninth Circuit has instructed that substantial similarity often involves close issues of fact that are not properly decided on motions to dismiss.

Plaintiffs also sought a declaration that Top Gun: Maverick is derivative of Yonay’s article. The court acknowledged that plaintiffs’ claim for declaratory relief “largely rises and falls with” their copyright infringement claim, and, therefore, also declined to dismiss it. The court found that plaintiffs sufficiently pled a breach of contract claim, because it was also largely related to the copyright infringement claim, specifically the substantial similarity issue. The 1983 assignment required Paramount to credit Yonay for any films that were “substantially based upon or adapted from” Yonay’s article. Because of this, the court recognized that this determination also depended on whether plaintiffs sufficiently pled substantial similarity—which the court held they had at this early stage of the case.