The Ninth Circuit Court of Appeals has affirmed a lower court’s decision, ruling in favor of Paramount Pictures Corporation in a copyright dispute brought by the heirs of Ehud Yonay, the author of the 1983 magazine article “Top Guns.” The Yonays claimed that Paramount’s 2022 blockbuster sequel, *Top Gun: Maverick*, infringed upon their copyright. The appellate panel concluded that the sequel did not copy substantial amounts of the original article’s protected expression and also rejected a related breach of contract claim regarding film credits.
Substantial Similarity: Facts vs. Expression
At the heart of the copyright claim was the requirement to prove “unlawful appropriation,” meaning the defendant copied the plaintiff’s *original expression*, not just general ideas or facts. The Ninth Circuit panel, in an opinion authored by Judge Miller, stressed that while both the 1983 article and the new movie deal with the U.S. Navy’s elite “Top Gun” fighter pilot training program—a factual subject—the expression used to tell those stories was fundamentally different.
The court reiterated established copyright law: ideas, procedures, concepts, and facts are not protected. Protection extends only to the specific, original way an author chooses to describe or arrange those elements.
The Yonays argued for substantial similarity across several categories, including plot, characters, dialogue, theme, mood, setting, and pace. However, the court found these similarities existed only at an abstract, unprotected level.
For instance, while both works depict demanding pilot training, the court noted that this is simply a fact about the real Top Gun program. The Yonays pointed to the article’s vivid, “New Journalism” style, but the court found that none of that specific, colorful phrasing appeared in *Maverick*.
Regarding plot, the court observed that the 1983 article, being non-fiction, had a non-linear structure focusing on two lieutenants, Yogi and Possum. In contrast, *Maverick* features a traditional dramatic plot centered on Captain Maverick returning to train younger pilots for a specific, high-stakes mission, including a romantic subplot—elements absent from the original article.
The panel also dismissed claims related to characters and dialogue. No characters from the 1983 article appear in *Maverick*. While the article described trainees as “men’s men” who were “jocular, confident, competitive,” the court found these character traits too general to warrant protection. Similarly, the one potentially identical piece of dialogue was the phrase “fight’s on,” which the court deemed a common utterance among real pilots.
Selection and Arrangement Argument Fails
The Yonays also advanced a “selection and arrangement” argument, suggesting that even if individual elements weren’t protectable, the unique pattern or design of how those elements were put together in the article was copied.
The Ninth Circuit clarified that while selection and arrangement can form a protectable element, the plaintiff must still show that the *pattern itself* is original expression. The court stated that the Yonays’ identified patterns—such as focusing on personal backgrounds, contrasting fierce and playful pilot traits, or juxtaposing idyllic flying with violent dogfights—were unprotectable ideas that have been used widely in storytelling.
“The question under the extrinsic test is whether the expression in *Maverick* is substantially similar to the original expression in ‘Top Guns,’ and it is not,” the opinion concluded on the copyright analysis.
Expert Testimony Rulings Upheld
The appellate court also addressed the district court’s handling of expert testimony, which is reviewed for abuse of discretion.
The district court excluded the Yonays’ expert, screenwriter Henry Bean, because his analysis focused heavily on similarities in unprotected elements, like facts (e.g., the presence of a brass bell in a bar or the difficulty of G-forces) and abstract ideas (e.g., the theme of heroic redemption). Bean reportedly disclaimed any systematic filtering between protected and unprotected content, making his opinions “unhelpful” to the court.
Conversely, the court allowed Paramount’s expert, Andrew Craig, a former Top Gun instructor, whose testimony helped the judge “filter out the unprotected, factual elements of the Article.” The Ninth Circuit found no abuse of discretion in these evidentiary rulings.
Breach of Contract Claim Dismissed
Finally, the Yonays argued that Paramount breached the 1983 agreement by failing to credit Ehud Yonay in *Maverick*. The agreement specified that credit was due for any film “produced by [Paramount] hereunder and substantially based upon or adapted from” the article.
The Ninth Circuit interpreted the word “and” as conjunctive, meaning both conditions had to be met. The court determined that the first condition—that the film be “produced by it hereunder” (meaning produced using the rights granted by the 1983 contract)—was not met. Since the court found *Maverick* did not infringe the copyright in “Top Guns,” Paramount did not use the rights conferred by that agreement to make the 2022 film. Therefore, the credit requirement was never triggered.
The Ninth Circuit affirmed the district court’s grant of summary judgment for Paramount on all counts.