In this episode of The Briefing by the IP Law Blog, Scott Hervey and Josh Escovedo discuss Paramount’s motion to dismiss a copyright infringement lawsuit relating to ‘Top Gun: Maverick.’

Watch this episode here.

Show Notes:

Scott:

Paramount came into the Top Gun Maverick copyright lawsuit guns hot by filing a motion to dismiss claiming that the sequel to the 1986 motion picture, Top Gun, does not infringe the copyright in Ehud Yonay’s magazine article. We are going to talk about this…

Scott:

In May 1983, California magazine published the article Top Guns, by EHUD YONAY. This article was an inside look at the real Navy Fighter Weapons School Top Gun based out of Miramar California. The article begins with a vivid description of two Top Gun F14 Tomcat avaitors, Yogi and Possum, on a hop, simulated dog fight training, against Top Gun instructors then continues with a deep dive into what makes Yogi and Possum (and other fighter pilots) tick, a look at the Top Gun training regimen, life on base and the history of Top Gun. When the article was published, it was optioned and in the credits for Top Gun Yonay is credited on the original movie as a writer of the magazine article

Josh:

On January 23, 2018, the Yonays properly availed themselves of their right to recover the copyright to the Story under the sent Paramount a statutory notice of termination under Copyright Act, and then filed it with the Copyright Office.As we have discussed previously on this program, Section 203 of the Copyright Act permits authors (or, if the authors are not alive, their surviving spouses, children or grandchildren, or executors, administrators, personal representatives or trustees) to terminate grants of copyright assignments and licenses that were made on or after January 1, 1978 when certain conditions have been met. Upon the effective date of termination, all rights in the work that were covered by the terminated grant revert to the author, however any derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination, but this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work covered by the terminated grant. The Yonays sued Paramount for copyright infringement claiming that the Top Gun Maverick infringes the Yonay’s right in the original article.

Scott:

When we previously reported on the complaint, we stated our belief that is case is going to be about whether Maverick is actually a derivative of the article, and, more interestingly, would Maverick even infringe the article given that the article is not a work of fiction but rather a factual work. It seems that Paramount agrees.

Josh:

In its motion to dismiss Paramount correctly argues that in order to state a claim for infringement a plaintiff must show substantial similarity between the works’ protected elements. Determining whether works are substantially similar involves a two-part analysis consisting of the ‘extrinsic test’ and the ‘intrinsic test.’” The extrinsic test “assesses the objective similarities of the two works, focusing only on the protectable elements of the plaintiff’s expression, whereas the intrinsic test “examines an ordinary person’s subjective impressions. Although a plaintiff must prove both to establish substantial similarity,a finding of substantial similarity under the extrinsic component is a necessary prerequisite to considering the intrinsic component, which is expressly reserved for the jury. As such, on a motion to dismiss, the court will only consider the extrinsic test and the extrinsic test can end a plaintiff’s infringement case only when the similarities between the works are either wholly due to unprotected elements, or where the amount of similar protected expression is de minimis as a matter of law.

Scott:

Paramount argues that in applying the extrinsic test and by filtering out the elements that are not protected under copyright law – that is facts, ideas, scenes a faire (which are situations and incidents that flow necessarily or naturally from a basic plot premise) and stock elements – the two works are not substantially similar. In its motion to dismiss Paramount argues that all elements that are alleged to be similar – the history and operations of the “Top Gun” academy; that the pilots pull off risky aerial maneuvers, that manner of combat training and the tactical discussions the pilots have; descriptions and depictions of fighter jets, including their exorbitant cost; pilots doing push-up exercises; pilots’ use of “call signs” as nicknames and depictions of camaraderie amongst pilots, including bar excursions and games —are reported in the Article as factual.

Josh:

Paramount also argues that the fact that both works are primarily based at the Naval Air Station Miramar also known as Fightertown USA can’t be considered by the court in determining whether the works are substantially similar because Miramar is or was the location of the real Top Gun training academy and Miramar base is actually referred to as Fightertown USA. All facts that copyright does not protect. Paramount also argues that any similarities between the characteristics of the real life pilots and the fictional characters in Maverick must be ignored.

Scott:

Right. In its motion to dismiss Paramount relies on Corbello v. Valli, the Jersey Boys case, for the proposition that a character based on a historical figure is not protected for copyright purposes. As you may recall Josh, we recently discussed this issue – claims of infringement based on the similarities of characters in works when we discussed Fox’s win in the 6th Circuit based on claims that the Taraji P Henson character in Empire, Cookie Lion, infringed the copyright in Sophia Eggleston’s biography, The Hidden Hand. In coming to the conclusion that the historical recitation of individual factual character traits and personal history are unprotectable facts, the 6th cir cited to both Corbello and Vallejo v. Narcos Prods. LLC.

Josh:

There was no way that Paramount was going to bug out of this dogfight.

Scott:

I agree with you Josh. Its going to be interesting to see how the Plaintiff’s respond to Paramount’s motion to dismiss. Its almost certain that nothing in Paramount’s motion would be a surprise to them and you can bet that they had their objection to Paramount’s motion outlined when they drafted the complaint.

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