Wednesday, June 8, 2022

Copyright infringement complaint over Top Gun Maverick blockbuster movie: derivative work or unprotectable abstract ideas?

Patent litigation is by far the most important field of intellectual property enforcement, but every once in a while a copyright case comes along that sparks the curiosity of those focusing on patents. There have recently been two filings--both in the Central District of California, the copyright venue especially in an entertainment context--that have definitely gotten me curious. One is Hanagami v. Epic Games, where a choreographer represented by David Hecht (who ten years ago was on the Quinn Emanuel team representing Samsung against Apple and has also recently done great work in a context involving Apple) is suing the Fortnite maker over an emote. Epic's lawyers from Kirkland & Ellis brought a motion to dismiss, large parts of which I can't imagine to succeed. A potentially even bigger--but at first sight nowhere near as likely to succeed--is the copyright complaint brought by Marc Toberoff, a Hollywood copyright litigation legend, on behalf of the heirs to Ehud Yonay, a journalist who wrote an article about a San Diego naval academy that inspired the original Top Gun movie. Countless articles appeared yesterday, such as this NBC News story.

Top Gun Maverick--the super-late sequel to the mid-1980s film--has already grossed approximately half a billion dollars and is on track to becoming a billion-dollar movie. The Yonay v. Paramount complaint argues that the Yonays recovered their copyright to the relevant article, which Paramount originally licensed, under 17 U.S.C. § 203(a). That statute enables authors or their heirs to claw back copyrights after 35 years. If Paramount had made a Top Gun sequel a few years earlier, that statute wouldn't have been relevant. It might not even have mattered if Maverick hadn't been delayed by COVID. The most important date here is when the second Top Gun movie was completed and released.

Paramount must have been very confident of its position as it didn't negotiate with the Yonays after the copyright to the article had reverted to them. Now the journalist's heirs are seeking injunctive (even a preliminary injunction) and monetary relief.

Let me show you the documents--the complaint as well as an exhibit thereto, which is designed to show common elements between the copyrighted article and Top Gun Maverick. First, the complaint:

And now the exhibit:

It's possible that this complaint is largely a bet on the expectancy value (which is massive if there's a lot at stake even if something represents a long shot). All the publicity is not going to dissuade movie-goers from watching the film, but an injunction could do major damage (though the question is whether the Yonay heirs could actually afford to enforce it, as the potential wrongful-enforcement damages would be huge).

I'm just talking about it in the hypothetical. Copyright has clear limits when it comes to protecting ideas as opposed to expression (Baker v. Selden). I've seen various items in that exhibit to the complaint that are ideas, not expression. The plaintiffs will have to argue that the totality of the alleged parallels does constitute a violation of their copyright in particular expression (they argue that Top Gun Maverick is a derivative work of the original article)--and they'll point to the fact that Paramount originally licensed that article. But what some other executives decided in the 1980s just to err on the side of caution doesn't change anything about the legal standard for distinguishing ideas from expression.

A jury trial would be very risky for Paramount Pictures as the original license agreement would look to the average person like an acknowledgment of at least the original Top Gun movie having been derived from the copyrighted material-in-suit. It could then appear to be a logical conclusion that Top Gun Maverick, too, was derived from the original article, as it contains some flashbacks from, references to, and common elements with the first Top Gun movie. Jurors might side with the little guys against that big movie studio.

Paramount may very well be able to shoot this complaint down well ahead of a jury trial, but that exhibit to the complaint is clearly intended to raise enough factual issues that the judge can't just grant a motion to dismiss or summary judgment of non-infringement.

Again, I'm not taking a definitive position here, but I'm rather unconvinced of the merits of that case, and tend to believe that the lawyers at Paramount knew exactly what they were doing when they ignored the Yonays' royalty demands.

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