I feel the need… The need to file frivolous copyright lawsuits to cash in on Top Gun

from also,-for-speed department

Could Paramount Pictures have actually lost the copyrights to Top Gun, even as it released a new Top Gun movie? It’s the demand for a new lawsuit that gets pretty deep into the copyright weeds, tackling two ridiculous topics we like to write about on Techdirt: termination rights and movie rights.

For many years now, we’ve been talking about the confusing mess that is the copyright termination right. The whole concept behind them is kinda weird, and it’s sort of an escape valve attempt to try to justify why the copyright terms are so ridiculously long and why most copyrights get kicked out of the hands of actual creators to giant intermediaries like record labels or movie studios. The idea behind rescission rights, in theory, is that it allows the true creator to reclaim the copyright after 35 years.

Of course, for decades now, the legacy copyright industry, which has benefited so much from endless copyright combined with its ability to forcefully weaponize innocent young creators into giving up their rights to author, fights against termination rights, trying to make it impossible to exercise and play other sketchy games (the bulk of these games, of course, date back to when the current CEO of the RIAA was a congressman, and slipped a few words in an unrelated bill in the middle of the night to strip musicians of their termination rights – something to remember whenever the RIAA claims to be defending artists’ rights).

However, in most fights for termination rights, there is no one to cheer for. The whole thing tends to be a lame cash grab on all sides, although in most cases I’d rather the real creator end up with the copyright. Probably the lawyer who has done the most to exercise creator termination rights is Marc Toberoff, whom we’ve talked about a number of times already. And when he teams up with former 9th Circuit Chief Judge Alex Kozinski to file a lawsuit, you should probably take him seriously.

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

The trial in question, first highlighted by Eriq Gardner at Puck Newsis a claim by Shosh and Yuval Yonay against Paramount Pictures, asserting that new Top Gun movie is copyright infringement. The history of this case is a bit complex. In 1983, Ehud Yonay wrote an article called “Top Guns” for the 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 those lawsuits in which an artist’s heirs try to profit. Anyway, Ehud wrote the article, and the article got some attention.

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

So, here we come into the issue of movie rights. As we’ve discussed, they’re sort of a weird subspecies of copyright law. You cannot copyright facts. And most movies based on magazine articles don’t copy any from the copyrighted prose of the article. And so “film rights” are really just a kind of insurance policy. It tends to do two things: (1) keep the author of the original article from saying how unfair this whole thing is, and (2) maybe, but not always, get the writer to at least help a little about the history of the film. to make sure it makes sense. And that’s all. There’s not a whole lot of actual “rights” involved, as movies rarely have much to do with actual copyrighted material.

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

Rather than just focusing on the dry historical details of the training school, the story focuses on the pilots (the “Top Guns”) and their personal experiences, highlighting two in particular, a hotshot pilot (“Yogi “) and its radio interception. officer (“Possum”), as they are hammered into a team. He skillfully selects stories from the pilots’ personal lives and the precise details of their “jumps” (flying maneuvers) to construct a fictionalized, first-hand experience of what it is like to be a member of a squadron of Navy elite fighter.

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

In an attempt to circumvent this staggering level of weakness in the case, Toberoff and Kozinski argue, weakly enough for two such attorneys, that the film is a “derivative work” of the original story. And then, that the new film Top Gun: Maverick is a derivative work of the first film. And…then a few years ago when the termination period opened, the Yonays terminated the copyright assignment they had originally given to Paramount for the original film.

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

Here, there is none of that. There is not even an attempt to claim that anything was actually copied. There’s just a bunch of hand gestures, which looks really bad for Toberoff and Kozinski, and who I would expect better from. At best, it looks like something of a shakedown to simply try to get Paramount to pay to avoid embarrassment. At worst, it looks like a mad lawsuit from the two lawyers, in hopes that they can somehow get this through a jury to dazzle them with allegations about the big Hollywood baddie. “stealing” this poor family.

They’re great lawyers who know what they’re doing, but this feels 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, film rights, movies, sequels, shosh yonay, termination rights, top gun, yuval yonay

Companies: essential images

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