A judge has ruled that “Top Gun: Maverick” did not infringe on an article about Navy fighter pilots that inspired the original 1986 film.
Paramount bought the rights to the article, “Top Guns,” from author Ehud Yonay in May 1983. But the studio did not re-acquire the rights, which had reverted to Yonay’s widow and son, before releasing the sequel in 2022. “Top Gun: Maverick” grossed $1.5 billion at the box office.
The heirs sued, alleging that the sequel infringed on the copyright in Yonay’s original work. But in a ruling on Friday, Judge Percy Anderson found that any similarities are not protected creative expression under copyright law.
“To the extent Plaintiffs contend that the Works are similar because they depict or describe fighter pilots landing on an aircraft carrier, being shot down while flying, and carousing at a bar, those are unprotected facts, familiar stock scenes, or scènes à faire,” the judge wrote.
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In a brief response, Paramount said it was happy with the ruling.
“We are pleased that the court recognized that plaintiffs’ claims were completely without merit,” a studio spokesperson said.
The heirs’ attorney, Marc Toberoff, vowed to appeal to the 9th Circuit.
“Paramount’s actions speak much louder than its counsel’s words,” Toberoff said via email. “In 1983, soon after Ehud Yonay’s cinematic Top Guns Story appeared in California Magazine, Paramount literally raced to lock up the Story’s copyright to the exclusion of other Studios… Yet once Yonay’s widow and son exercised the rights Congress gave them in the Copyright Act to reclaim the author’s captivating Story, Paramount hand-waived them away exclaiming ‘What copyright?’ It’s just not a good look.”
Yonay’s article focused on two pilots, Yogi and Possum, at the Navy Fighter Weapons School in San Diego. The lawsuit argued that Yonay infused the story with cinematic touches and vivid imagery, and claimed that its creative expression is entitled to the protection of copyright.
But in his 14-page ruling, Anderson noted that the article is non-fiction, and that simply reporting facts — including dialogue between real people — is not protectable expression.
“To the extent there are similarities between the characters in the Works, the characters in the Article are real people and are therefore not protected by copyright law,” he wrote.
The judge also noted the many differences between the movie and the article, including the plot, dialogue and setting, and ultimately concluded that the works are not substantially similar.
The heirs also argued that “Top Gun: Maverick” failed to credit Yonay, as required by his original contract. But the judge found that Paramount had no obligation to credit him, as the contract had been terminated and the sequel was not produced under that agreement.
Anderson previously denied Paramount’s motion to dismiss the case, finding there was enough substance to the claim to proceed to discovery.
Both sides then retained experts who each praised the article — but in ways designed to help one side or the other.
The plaintiffs called upon Henry Bean, a former adjunct professor and the screenwriter of thrillers including “Deep Cover” and “Basic Instinct 2,” who argued that both “Top Gun” films owe a tremendous literary debt to Yonay’s work.
In his report, he stated that the films are “‘about’ a very special ‘world,’ and that world, and our ability to nonetheless relate to it, comes from the story. Indeed it was created by the story.”
Paramount, meanwhile, enlisted Andrew Craig, a former Top Gun instructor and now a commanding officer in the Navy Reserve. Craig opined that the article was an accurate and factual description of life at the Navy’s Top Gun school and the capabilities of fighter aircraft — thereby undermining its protection as a creative work.
In his expert report, Craig said he was inspired to become a fighter pilot by watching the original movie on VHS.
“I was about seven years old then, and from that moment, becoming a Navy fighter pilot and attending TOPGUN was what every single fiber of my being was focused on,” Craig wrote.
The plaintiffs argued that Craig was not qualified to assess the article’s literary qualities. But in his ruling, Anderson wrote that Craig’s opinions were useful and relevant. The judge excluded Bean’s analysis, finding that it was a subjective, rather than objective, comparison between the two works.
