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Top Gun: Maverick Flies Into A Derivative Danger Zone – Copyright

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In true fly-by style, Paramount Pictures’ blockbuster
Top Gun sequel, Maverick has, by mid-August,
already whizzed to a global box office haul of a staggering USD
1.37 billion. The new film also flew into a legal storm when the
family of the late Israeli writer, Ehud Yonay, whose article
inspired the original 1986 film Top Gun, announced they
would be suing the film-makers for copyright infringement over the
highly anticipated Tom Cruise flick.

In 1983, California Magazine published an article by the late
Israeli author, Ehud Yonay. Titled “Top Guns,” the story
evoked romantic and dramatic imagery of the exploits and adventures
of Navy jet fighter pilots. Paramount Pictures quickly secured
exclusive motion picture rights to Yonay’s story shortly after
its publication and he was then credited on the original 1986

According to the documents submitted in anticipation of a
lawsuit, the Yonay family claims that they had “properly
availed themselves of their right to recover the copyright of the
original story in accordance with copyright legislation via a
statutory notice of termination, effective January 24, 2020.”
Despite this, they said, “Paramount deliberately ignored this,
thumbing its nose at the statute.” The family’s 24 January
action will most definitely become one of the critical factors in
the lawsuit.

Yonay’s family argues that copyright law gives authors the
right to financially benefit from their creations and to
participate – in some meaningful way – in the fruits of their
labour. By the family’s own interpretation, Paramount ought to
have obtained the rights again as Maverick is a derivative of the
original work. Paramount countered the family’s
cease-and-desist letter, sent in May, by denying that Top Gun:
was “obviously derivative” of the magazine

If the original “Top Guns” article was published in
South Africa, to qualify for protection by Copyright, the story
would need to qualify as a literary, dramatic, musical, or artistic
work, a sound recording, film, communication work or a
typographical arrangement of published editions. It would also need
to be an original work. In South Africa, copyright subsists in an
author’s literary work until the end of the period of 50 years
from the end of the calendar year in which the author dies.

According to our Copyright Act, the owners of literary,
dramatic, and musical works have the exclusive right to reproduce
the work, publish it, communicate it online, adapt it and perform
it in public. That means that the right to reproduce works and
anything derived from the original story vests with Ehud Yonay
unless and until he licenses the rights to someone else.

It is important to note that Yonay licensed the right to create
a derivate work based on his article. The copyright of a
derivative work is separate from the copyright to the original
work, meaning that if the copyright holder gives someone a licence
to create a derivative work, the copyright in the derivative work
is owned by the licensee and not the holder of the original work,
although the owner of the original work can retain control over the
derivative work.

This is where the family’s claimed ’24 January 2020
action’ comes into play because from the moment the Yonay
Family reclaimed their derivative rights, Paramount Pictures,
technically could have lost their ability to publish Top Gun:
. Paramount must show then that Maverick is not a
derivative work. Alternatively, Paramount must show that it created
the derivative work under the umbrella of the rights it was
afforded to previously.

A person can withdraw a license to create a derivative work. The
question, however, is whether Top Gun: Maverick was
created under the license granted to Paramount and whether the
release qualifies as an act of infringement in light of copyright
legislation. As the derivative work itself also carries copyright
protection, the creator of the derivative work owns the copyright
to that derivative work. This can either be the creator of the
original work, or someone else who has obtained a derivative work
license from the holder of the original copyright.

Maverick’s original release date was apparently
scheduled before the Covid-19 pandemic, and possibly before the
Yonay Family’s claimed 2020 notice of termination but had to be
delayed because of the global health threat. It will therefore be
interesting to see Paramount’s response to the lawsuit against
this background.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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