I Feel The Need… The Need To File Frivolous Copyright Lawsuits To Cash In On Top Gun

Copyright

from the also,-for-speed dept

Could Paramount Pictures have actually lost the copyright to Top Gun, even as it was releasing a new Top Gun movie? That’s the claim in a new lawsuit that goes pretty deep into the copyright weeds, touching on two ridiculous topics that we like to write about on Techdirt: termination rights and movie rights.

For many years now, we’ve talked about the confusing mess that is copyright termination rights. The whole concept behind them is a bit bizarre, and it’s sort of an attempted escape valve to try to justify why copyright terms are so ridiculously long and why most copyrights are forced out of the hands of actual creators into giant intermediaries like record labels or movie studios. The idea behind termination rights, in theory, is that it allows the actual creator to reclaim the copyright after 35 years.

Of course, for decades now, the legacy copyright industry, which has benefited so much from never-ending copyright combined with their ability to strong arm young and innocent creators into handing over their copyrights, has been fighting against termination rights, trying to make them impossible to exercise, and playing other sketchy games (the biggest such game, of course, was back when the current CEO of the RIAA was a congressional staffer, and snuck a few words into an unrelated bill in the middle of the night in order to strip musicians of their termination rights — something to remember every time the RIAA pretends its sticking up for artist rights).

Anyway, in most termination rights fights, there is no one to cheer for. The whole thing tends to be a lame money-grab on all sides, though in most cases, I’d rather the actual creator end up with the copyrights. The lawyer who has probably done the most to exercise termination rights for creators is Marc Toberoff, who we’ve written about a few times before. And when he teams up with the former Chief Judge of the 9th Circuit, Alex Kozinski, to file a lawsuit, you should probably take it seriously.

And that’s why I’m kind of shocked that the lawsuit here… is… so weak.

The lawsuit in question, as first highlighted by Eriq Gardner at Puck News, is a claim by Shosh and Yuval Yonay against Paramount Pictures, to argue that the new Top Gun movie is a copyright violation. The history of this case is a bit involved. In 1983, Ehud Yonay wrote an article called “Top Guns” for California magazine. The story was about a naval training base where Navy pilots were trained. Shosh is Ehud’s widow. Yuval is their son. So this is yet another one of these lawsuits in which the heirs of an artist are trying to cash in. Anyway, Ehud wrote the article, and the article got some attention.

Paramount then licensed the story and used that as part of the basis for the popular, highly quotable to an annoying degree, 1986 film “Top Gun” starring Tom Cruise, Kelly McGillis, Val Kilmer, Anthony Edwards and a bunch of others.

So, here we get into the issue of movie rights. As we’ve discussed, they’re sort of a bizarre subspecies of copyright. You cannot copyright facts. And most movies based on magazine articles don’t actually copy any of the copyright protected prose of the article. And so “movie rights” is really just a kind of insurance policy. It tends to do two things: (1) prevent the original article writer from making a stink about how unfair it all is, and (2) possibly, though not always, getting the writer to at least help out a bit on the movie story to make sure it makes sense. And that’s it. There isn’t much in the way of actual “rights” involved, because the movies rarely have much to do with the actual material that is covered by the copyright.

And, indeed, that appears to be the case with the “Top Guns” story, which was not about Maverick and Goose, but as the complaint itself points out, two actual pilots with totally different nicknames.

Rather than focusing merely on the dry historical details of the training school, the Story focuses on the pilots (the “Top Guns”) and their personal experiences, singling out two in particular, a hotshot pilot (“Yogi”) and his radio intercept officer (“Possum”), as they are hammered into a team. It skillfully selects accounts of the pilots’ personal lives and precise details of their “hops” (flight maneuvers) to construct a romanticized, first-hand experience of what it is like to be a member of an elite Navy fighter squadron.

So, let’s be clear here. Nowhere is it even suggested that the original movie even copied much from the original article. The name was slightly different, but the characters were very different. And while the complaint notes that both the story and the movie gave “accounts of the pilots’ personal lives” and “precise details of their ‘hops,'” note that the complaint does not suggest that the accounts in the movie copied any of the copyright protected content of the original story. Instead, they just presented a similar concept and idea, but as we keep pointing out — and as Kozinski damn well knows — you can only copyright the specific expression, not the idea.

To try to get around this astounding level of weakness in the case Toberoff and Kozinski argue, fairly weakly for two such lawyers, that the movie is a “derivative work” of the original story. And, then, that the new Top Gun: Maverick movie is a derivative work of the first movie. And… then that a few years back, when the termination period opened up, the Yonay’s terminated the copyright assignment they had originally granted Paramount for the original movie.

Of course, this also gets to another mess in copyright law that we love to cover: the mess of derivative works. Derivative works sometimes mess up the whole idea/expression issue, because often a “derivative work” is not a copy of any of the actually protected parts of the original work. But… um… usually it’s more than this. Usually it involves at least characters that the author can claim were covered by copyright.

Here, there’s none of that. There isn’t even an attempt to argue that anything was actually copied. There’s just a bunch of handwaving, which looks really bad for both Toberoff and Kozinski, and from whom I’d expect better. At best, this feels like something of a shakedown to just try to get Paramount to pay up to avoid embarrassment. At worst, this feels like a crapshoot lawsuit from the two lawyers, hoping they can somehow get this in front of a jury to razzle dazzle them with claims about big bad Hollywood “stealing” from this poor family.

These are big time lawyers who know what they’re doing, but it seems like a ridiculously weak lawsuit, and little more than an attempt to cash in on the new movie.

Filed Under: alex kozinski, copyright, derivative works, ehud yonay, idea expression dichotomy, marc toberoff, movie rights, movies, sequels, shosh yonay, termination rights, top gun, yuval yonay
Companies: paramount pictures