Yonay v. Paramount Pictures Corp.

In suit claiming 2022 film Top Gun: Maverick infringed 1983 magazine article about real-life fighter pilot training program that inspired original 1986 Top Gun film, Ninth Circuit affirms summary judgment in defendants’ favor, finding that Maverick did not contain any substantial similarity of protectable expression with nonfiction magazine article.

In 1983, California Magazine published journalist Ehud Yonay’s 11‑page nonfiction article about the Navy’s Fighter Weapons School known as Top Gun and the experience of flying F‑14 fighter jets. Shortly after the article’s publication, Yonay granted Paramount Pictures all rights in the article in exchange for a fixed payment and credit in future films that were produced under the agreement and that were substantially based on the article. Paramount released the blockbuster Top Gun in 1986 with a “suggested by” credit referencing the article. After Yonay’s death in 2012, his widow, Shosh, and son, Yuval, became owners of the copyright in the article. In 2020, they terminated the late journalist’s copyright assignment to Paramount. Two years later, Paramount released a sequel to Top Gun titled Top Gun: Maverick, which takes place decades after the original film. Paramount did not compensate the Yonays or credit the late journalist in the film.

The Yonays sued Paramount for copyright infringement, breach of contract and declaratory relief. The district court granted Paramount’s motion for summary judgment and denied plaintiffs’ motion for summary judgment on all claims, finding no substantial similarities between the magazine article and Top Gun: Maverick. (Read our summary of the district court’s decision here.)

On appeal, the Ninth Circuit affirmed, holding that Top Gun: Maverick is not substantially similar to the protectable expressions in the article. The court applied the “extrinsic test,” which “assesses the objective similarities of the two works” by filtering out unprotectable ideas and facts and comparing only protectable expression across categories such as plot, sequence of events, characters, dialogue, themes, mood, setting and pace.

The panel held that although the article contains “much original, protected expression—most notably, its vivid phrasing and innovative structure—none of that expression appears in Maverick.” Plaintiffs were able to show overlap only at a high level of abstraction or in facts about the real Top Gun program and F‑14 aircraft, none of which is protectable. Regarding the plot and sequence, the nonfiction article is arranged nonlinearly and peppered with historical and technical digressions, loosely following real pilots with call-signs Yogi and Possum. The sequel film, on the other hand, is a conventional, chronological narrative centered on an instructor returning to Top Gun to prepare graduates for a specific perilous mission, including a romantic subplot and an extended on‑screen mission sequence. Plaintiffs’ reliance on shared facts (e.g., Top Gun training and F‑14 variable‑sweep wings) failed because facts are not protectable. At same time, the article’s distinctive metaphors describing the F‑14’s wing sweep do not appear in the film.

Regarding characters, the Court of Appeals found that none of the article’s real-life figures appear in the sequel and to the extent that the article invoked generalized traits such as “jocular,” “competitive” or “men’s men,” those abstractions were not protectable. On dialogue, the court concluded that the only overlapping phrase between the two works—“fight’s on”—is a functional term used in training and is therefore not protectable expression. Regarding themes, mood, setting and pace, the Yonays pointed to alleged similarities such as nostalgia, “Western” tropes and alternation between aerial and ground scenes, which the court found represent unprotectable ideas or the realities of pilot training. The court also noted that settings differ (Miramar in the article; North Island in Maverick) and the article’s colorful descriptions of the naval base do not appear in the film.

The court also affirmed the exclusion of plaintiffs’ expert witness because he expressly declined to filter unprotectable elements and focused on factual overlap and abstract themes. The expert’s methodology would not help the trier of fact at summary judgment and, even if admitted, would not create a material dispute on substantial similarity. The court found that the district court also acted within its discretion in considering Paramount’s expert, a former Top Gun instructor, whose testimony aided the court in filtering out factual material in conducting the extrinsic analysis.

Finally, the court affirmed the lower court’s interpretation of the credit clause in the 1983 agreement. The agreement required Paramount to credit the late journalist only if two conditions were met: The film must be “produced by [Paramount] hereunder” and “substantially based upon or adapted from” the article or a version/adaptation incorporating its plot, theme, characterizations, motive and treatment. The court read “hereunder” in its ordinary sense and held that because the sequel did not infringe the article, Paramount did not use the article’s copyright to produce the film. Therefore, the first condition failed, defeating the credit claim. Plaintiffs’ bid to collapse the clause into a single idea expressed by two words connected with “and” was rejected given the clause’s length and structure and the ordinary conjunctive meaning of “and.”

Summary prepared by Tal Dickstein and Ezra Issacson