‘Top Gun: Maverick’ Copyright Appeal Hits Skeptical 9th Circuit

A Ninth Circuit panel grilled an attorney representing the heirs of a magazine writer, arguing to revive a lawsuit accusing “Top Gun: Maverick” of infringing the article that inspired the original 1986 “Top Gun” movie.

Arguing for the family of author Ehud Yonay, Alex Kozinski told the panel that disputed facts about the similarity between the works should be left to a jury during oral argument Tuesday at the US Court of Appeals for the Ninth Circuit. The Yonays are appealing a district court’s ruling that Paramount didn’t infringe.

But the panel struggled to find protectable expression from the article about real-life F-14 fighter pilots that the 2022 sequel starring Tom Cruise might have copied. Kozinski argued the arrangement of those facts is protectable and said the case has major ramifications for copyright protection of nonfiction works.

The panel forcibly pushed back on Kozinski’s effort to tie the article to both movies.

“Tell me why ‘Top Gun’ is at all relevant to this case,” Circuit Judge Andrew D. Hurwitz said. “It sound evocative to say that Maverick is a sequel, and the sequal must have followed from the first, and since they got a license for the first, they must have needed one for the second. But there’s no case law that actually says that, and so here our job is to compare ‘Maverick to the article and forget all about ‘Top Gun.’”

Ehud Yonay wrote his nonfiction magazine article about a pair of pilots at the Navy Fighter Weapons School—nicknamed Top Gun school. Shosh and Yunal Yonay, Ehud’s widow and son, terminated Ehud’s assignment of movie rights to Paramount, effective in 2020, under a provision in US copyright law that allows creators to unilaterally reclaim assignments 35 to 40 years later.

The Yonays sued Paramount in 2022, alleging copyright infringement. But after initially rejecting Paramount’s bid to dismiss the suit, the US District Court for the Central District of California ruled the sequel, set decades after the article and original movie, shares little in common beyond unprotectable stock characters and settings directly stemming from the unprotectable idea of depicting the lives of fighter pilots.

Kozinski argued that Yonay’s article and the original “Top Gun” largely shaped those fighter pilot tropes. He noted a 2020 Ninth Circuit ruling that a district court should’ve considered the possibility that some claimed similarities between a script and the allegedly-infringing “Pirates of the Caribbean” movie are only tropes because of the Disney franchise.

He also argued against the lower court’s exclusion of the Yonays’ expert for not filtering out unprotected elements, arguing their selection-and-arrangement theory of copyright protection made wholesale filtering improper. Even if each element is unprotectable individually, Paramount could infringe by incorporating a similar selection, such as the pace of high intensity flying, tension between teamwork and competition, partying hard, flying low through valleys, and “pulling Gs.”

‘But That’s a Fact’

The panel asked Paramount attorney Molly Lens of O’Melveny & Myers LLP whether reversing the lower court’s exclusion of the Yonays’ expert would mean the case should have survived. She said it still would have failed, as “dueling experts” alone doesn’t preclude summary judgment.

“The expert’s testimony doesn’t change the nature of the work,” Lens said. “The fact that ‘Maverick’ is a derivative work of ‘Top Gun’ 1986 doesn’t mean it’s a derivative work of the article.”

Kozinski faced additional pushback over some claimed similarities the panel suggested were unprotectable facts. He noted as an example how the article talked about how an F-14 can swing back its wings so that it can take off on a short runway, which was featured in the movie.

“But that’s a fact about the F-14. It really does do that,” Circuit Judge Eric D. Miller said.

Kozinski complained the district court said “everything is fact,” and Miller responded: “Not everything is fact. As I recall the article said something about ‘the wings sweep out like an eagle’ or something like that. That’s an evocative phrase, that’s creative and original and totally protectable. But that’s not in the movie.”

Kozinski pointed to a friend-of-the-court brief by the National Society of Entertainment and Arts Lawyers that emphasized copyright law’s recognition of the value of expressive factual works. It said filtering facts in an extrinsic test “requires expert literary analysis—not the fact-checking and conclusory analysis” the lower court performed.

“Movies and shows that are based on facts are something for which the public has an appetite,” Kozinski said. “This is going to destroy an industry if this is the law in the Ninth Circuit.”

Circuit Judge Jennifer Sung also sat on the panel.

Kozinski, of Rancho Palos Verdes, Calif., and Toberoff & Associates PC represent the Yonays.

The case is Yonay v. Paramount Pictures Corp., 9th Cir., No. 24-2897, oral argument 6/3/25.