Importance of IP agreements to new product launches

DATE 16th June 2022

On 6 June, Paramount Pictures, the production company behind Top Gun: Maverick, was sued
for copyright infringement in the USA by the heirs of Ahud Yonay, whose story about real-life
fighter pilots entitled “Top Guns” was published in California Magazine in 1983.

The rights to that story were acquired by Paramount Pictures in the same year and in 1986 the
original Top Gun movie was released.

However, US Copyright law allows an author, or in this case his heirs, to terminate a previous
assignment of copyright from the end of the 35th year after the assignment and up to five years
thereafter. The basis of the Ahud Yonay’s heirs’ complaint is that they terminated the transfer on
January 24 2020 and thus the release of Top Gun: Maverick in 2022 has occurred without their
consent and is in breach of the copyright that subsists in their father’s original story.

The issue for Ahud Yonay’s heirs will be whether they are in a position to prove that Top Gun:
Maverick reproduces elements of the original work. Whilst the first film may have done that, the
sequel may arguably simply convey scenes that would be generally present in a film about fighter
pilots. Copyright does not extend to concepts or ideas of that nature and this is the position in the
UK and Europe too.

Copyright protects the expression of such concepts or ideas and a for a third
party to infringe it would be necessary for them to copy a substantial part of that original work.
It appears that on this basis Ahud Yonay’s heirs may struggle to succeed with this claim but this
will be determined by the nature of the content of the sequel and the original story.

Furthermore, in a similar case in the US this year, the Philadelphia Phillies were able to continue
to use the updated version of the design of their mascot, despite the designer of the original
mascot having cancelled the assignment of the rights to their design for the original mascot. This
is because US Copyright legislation allows the creators of derivative works to continue to use
derivative works created before the termination of a copyright assignment.

Finally Top Gun: Maverick was reportedly in the can before the end of 2019, which does raise the
question of whether any alleged copying of the original story was done before the termination of
the assignment in 2020.

We will continue to follow this story with interest. Regardless of the outcome, it serves as a useful
reminder to those launching new products or services that it is always important to consider the
relevance of any prior agreements that you have with third parties, in order to ensure that such
agreements remain in force and to consider whether your actions will be in breach of any of the
terms of those agreements.

For further information about this case, or any other IP issue, please contact Graeme Murray at
Marks & Clerk (