Paramount Pictures appear to be on the highway to the danger zone. The family of Ehud Yonay, the Israeli writer whose article inspired the original 1986 film “Top Gun” starring Tom Cruise, are suing the film production company for copyright infringement.

The family are suing Paramount in relation to the release of the sequel “Top Gun: Maverick”. In the first 10 days of its release the film generated £438m globally, a rare and immediate success for a cinema release as we appear to move to an age where subscription video on demand (“SVoD”) releases are the preferred alternative for producers and viewers alike.

Paramount obtained a copyright licence from Yonay to produce the original film based on his writing. The original article, published in California magazine in May 1983, told the story of “Yogi” and “Possum” in their time at the Navy Fighters Weapon School. Yonay’s family claim that the sequel is a derivate work and therefore its content still relies on the original article.

The lawsuit, filed in Los Angeles federal court this week, claims that Paramount failed to reacquire the exclusive movie rights to the Israeli writer’s 1983 article “Top Guns” that were originally obtained for the first feature movie.  The complaint states that the copyright reverted to the writer’s widow and son in January 2020 and that Paramount had been aware of this since 2018 – when the Yonays informed them of their intention to recover the copyright under a US provision allowing them to do so after 35 years. Yonay’s family are seeking to restrict Paramount from distributing the movie, produce further sequels, and an unspecified damages amount including profits from the sequel currently out in cinema.

But Maverick is a sequel - surely the content is different?

In response, Paramount purport that the second film is not based on the 1983 article and that in any case the sequel was “sufficiently completed” by the time the rights expired in 2020. The film was originally scheduled to be released in July 2019 but was repeatedly delayed until its final May 2022 release date.

The UK’s position

Whilst the exact position and legislation is slightly different in the UK, the overarching principles are similar. UK copyright law is set out in the Copyright, Designs and Patents Act 1988 (“CDPA”) and includes films and original literary or dramatic works as protected categories. According to UK case law, screenplays for films are protected dramatic works.

The screenplay itself could be an adaptation of a book, play or, in Top Guns’ case, an article in a magazine. The underlying magazine article would also be protected as a literary work, and so anyone wishing to adapt it would require a licence from the copyright owner as Paramount originally did in the 1980s.

Derivate Works

Derivate works are works based on, or some way derived from, another protected work. If a work is deemed to be a derivative work, the copyright is still owned by the original owner.

However, not every derivative work is automatically an infringement of copyright and the CDPA provides exemptions for when there is no infringement. Moreover, derivative works can themselves be protected by copyright. Thus the 1986 movie Top Gun, although a derivative of the 1983 article, would have its own copyright and accordingly Top Gun: Maverick, would also have its own copyright. The key deciding factor is whether sufficient skill and labour has been used in the creation of the new work, rather than purely copying the original work. In some cases, it has even been ruled that copyright can exist in derivative works even if they infringe the copyright of the derived work.

Infringement

In the UK, if you believe your copyright protected works are being infringed you can raise proceedings for copyright infringement.  As part of those proceedings, there are several remedies available to you.  Some of these orders include:

1. injunctive / interdict relief at the outset preventing the alleged copyright infringement continuing while the proceedings are live;
2. an order to deliver up to you the infringing works;
3. Monetary damages to compensate you for the period of unauthorised use of your works.  For example, if you exploit your copyright works by way of licence, damages can be calculated with reference to that practice (e.g. photographers often have a set scale on which they licence their images) or you can elect to seek an account of profits from the infringer;
4. An order to publicise the court’s judgement at the infringer’s expense.  This making it clear that you take the infringement of your copyright works seriously and acting as a deterrent to future infringers;
5. Seeking your legal costs / expenses in raising the action against the infringer; and
6. A final injunction / interdict at the end of the proceedings prohibiting the infringer from infringing your copyright works in the future.

In the event that a high-profile organisation is found to have infringed another parties copyright works, especially those belonging to a smaller entity or individual, there are not only monetary considerations for that organisation but also reputational ones to contend with.

With the ever-increasing popularity of more recent media forms such as SVoD and podcasts, it is commonplace for those in the media industry such as writers and producers to battle it out for who retains which derivative rights in copyrighted material, be that feature picture rights, audio rights or even merchandising rights. It is therefore important to ensure than any contracts between the parties deal with these appropriately and contain adequate protection for those owning the rights and those acquiring them.

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