Highway to the danger zone

Harvard Law Professor Rebecca Tushnet discusses the copyright infringement lawsuit against “Top Gun: Maverick”

On Monday, “Top Gun: Maverick,” the long-awaited, action-packed sequel to the 1986 classic starring Tom Cruise, was slapped with a copyright infringement lawsuit — the same day the new film posted more than $557 million in global box office returns.

In their suit, the heirs of Ehud Yonay, whose California magazine article inspired the films, claim that the movie rights returned to their family in 2020 in accordance with U.S. copyright law. More importantly, Yonay’s widow and son say that Paramount Pictures, which produced both films, failed to obtain the necessary license for this summer’s sequel. Now, the pair have asked a federal court to stop the distribution of the film — or give them a portion of its profits.

Paramount, for its part, has said the lawsuit is “without merit,” and that the studio had largely completed “Top Gun: Maverick” before the expiration of its license.

In an email interview, Rebecca Tushnet, the Frank Stanton Professor of the First Amendment at Harvard Law School and a copyright law expert, told Harvard Law Today that the suit’s success may come down to how much the studio tinkered with the film after 2020 — when the Yonays reobtained the rights. Here, she discusses what copyright recovery is, why it exists, and what could happen next.

Our biggest takeaway? The original “Top Gun” is safe, and this summer’s blockbuster sequel is not likely to have to leave the silver screen — even if Paramount has to pony up damages.


Rebecca Tushnet in a blue blazer.

Harvard Law Today: How did Ehud Yonay’s heirs get the copyright to his original article back?

Rebecca Tushnet: The modern Copyright Act allows individual authors to reclaim copyrights they have transferred 35 years after the transfer, with some exceptions.

HLT: What does it mean for there to be a right to “recover” a copyright? How does that work?

Tushnet: It’s called “termination of transfer,” and if the copyright owner or their heirs sends a termination notice in a specified time period, they can end the right of a transferee to continue to make copies or to make new “derivative works,” like a film based on a book or a further sequel. However, they cannot end the right of the transferee to continue to sell derivative works made before the termination.

So, no matter what, Paramount still owns the original Top Gun and can show it.

HLT: Why does copyright law allow for this?

Tushnet: The thought was that authors were disproportionately likely to be poor and lack bargaining power, and also to be vulnerable to exploitation by big companies. In the unlikely event that a given work became a hit, they or their families were supposed to get another bite at the apple — a chance to renegotiate the deal or even transfer to a different publisher that would pay them more for a proven work.

HLT: NPR reported that in its response to the suit, Paramount claimed that the film had been “sufficiently completed” by January 24, 2020, when the copyright returned to the Yonays. Is the case likely to come down to what “sufficiently completed” means?

Tushnet: The statute itself speaks of derivative works “prepared” before the termination became effective. So, I presume that Paramount means to argue that “prepared” meant “mostly done,” as you might say a chef has prepared a dish before the last garnish is set on top.

HLT: What other defenses might Paramount invoke?

Tushnet: There are two obvious defenses: one, that the new film was sufficiently prepared before the termination became effective; and two, that even if the original film contained elements from the original article, the new film doesn’t contain anything that counts as a “derivative work” of the original article, because the new film is so distant and based only on elements that Paramount itself added in “Top Gun,” not on elements taken from the article. That’s a fact-based determination, and I haven’t reviewed the article or seen the new film and have no opinion about it.

HLT: If a judge finds that Paramount violated copyright law, could it force the studio to stop distributing the new film?

Tushnet: Courts are often reluctant to enjoin distribution of works in situations like this, so a more likely result is that Paramount would be forced to pay a licensing amount set by the court.

HLT: How would a court calculate that amount?

Tushnet: Damages would likely be based on what a reasonable licensing fee would have been.

HLT: Was this a big mistake by the studio’s legal team?

Tushnet: No, the original schedule of the film had it completely clear because it would not just have been prepared before the termination became effective, it would have been released, and thus its completeness would have been inarguable (unusual situations like the re-editing of “Cats” after theatrical release aside).

The pandemic disrupted the release [which was originally scheduled for July 2019], and now there will be an expensive battle about the relevance of any edits that might have been made since then, no matter how small.