Tom Cruise and Paramount are cleared for takeoff on more Top Gun thanks to a trio of federal judges.
Three and a half years after the now David Ellison-owned studio was first buzzsawed by a Top Gun: Maverick copyright infringement from the estate of the journalist who penned the piece the original flyboy flick was based on, an appeals court has shut the whole thing down — at least for now.
“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,” writes Judge Eric D. Miller of the US Court of Appeals for the Ninth Circuit.
Reconfirming the April 2024 decision of U.S. District Judge Percy Anderson, the unreserved January 2 opinion ruled against the widow and son of Ehud Yonay, who penned “Top Guns” from the now-defunct California magazine’s May 1983 edition. Having sold his work to producers back in the day, Yonay, who died in 2012, was credited in the Reagan Era Top Gun. Common in the Ninth Circuit, the extrinsic test looks at comparison, context and, in a case like this, specific plot elements.
“The panel affirmed the district court’s conclusion that Maverick did not share substantial
amounts of the original expression of “Top Guns,” and plaintiffs therefore failed to establish a triable issue as to substantial similarity, as required to establish copyright infringement, Judge Miller also stated, writing for a trio that heard the appeal last year. “The panel concluded that there was a lack of similarity in protectable elements of the article, and plaintiffs did not establish an original and protectable selection and arrangement of elements.”
The aforementioned panel of three judges included Trump appointee Miller, as well as Andrew D. Hurwitz, and Jennifer Sung. With the likes of thorn-in-many-a-studio-paw Marc Taboroff and studio go to lawyer Daniel Petrocelli arguing for their respective clients, the trio of Pasadena-based judges heard arguments back in early June.
Additionally, Judge Miller noted that “the panel held that the district court properly granted summary judgment for Paramount on plaintiffs’ claim that Paramount breached its 1983 agreement with
Ehud Yonay by not crediting him in the 2022 movie.”
Tom Cruise in Top Gun: Maverick (Photo: Paramount Pictures / Courtesy Everett Collection)
One of a couple of suits that the Joseph Kosinski directed blockbuster has faced since its 2022 release, Shosh Yonay and Yuval Yonay’s breach of contract, declaratory relief, and copyright infringement action claimed “Top Guns” rights reverted to them in January 2020 under copyright statutes. They alleged the $1.5 billion box office hit violated termination rights and Paramount, Cruise and producers like Jerry Bruckheimer and now Par owner David Ellison had no standing to make the sequel to 1986’s Top Gun.
While there is still a path for the Yonays to request a to stay the mandate and seek a petition for rehearing, it will be a dog fight. To that, Toberoff did not respond to request from Deadline on the Appellate opinion and his next move, if any.
Sounding a lot like they did in 2024 when Judge Anderson found in their favor, Paramount kept it short and sweet. “We are pleased that the Ninth Circuit recognized that plaintiffs’ claims were completely without merit, a spokesperson for the WBD bidding company said.
As for the next move for Paramount, a Top Gun 3 is getting primed for takeoff.
