Intellectual Property and Top Gun: Maverick

“What's protected is not the ideas themselves. You can't copyright the idea of a flight school or fighter jets or pilots, but what is protected is the expression of it. How was the story actually written and expressed.” – Mark Fancourt-Smith

On Episode 25: Intellectual Property and Top Gun: Maverick – Mark Fancourt-Smith and Alixandra Stoicheff discuss a recent lawsuit brought forward against the movie, Top Gun: Maverick on the basis of copyright infringement, and how intellectual property is protected in the courts.

^{Quick Tip: To skip ahead to different topics in this podcast, hover over the media player and click the bullet point button:}

Don't have time to listen to the full podcast? Here's what this episode covered:

What are the two types of common option agreements? 00:52
What is happening with the Top Gun: Maverick lawsuit? 03:19
Why did Paramount file a motion to dismiss? 05:39
How did the courts respond? 07:17
What is protected under copyright and intellectual property law? 09:21
Are there other examples of cases like this? 10:30

Transcript

Mark Fancourt-Smith 00:10
Welcome to LawsonInsight I'm Mark Fancourt-Smith I use the pronouns he/him. I'm a partner in Lawson Lundell’s Vancouver office.

Alixandra Stoicheff 00:17
And I'm Alixandra Stoicheff and I use the pronoun she/her. I'm an associate in the firm's Calgary office. Thank you for joining us on the podcast. On this episode, we will be speaking about copyright infringement, the Oscars and Top Gun: Maverick, my favorite movie of the summer. So we wanted to have this recording this week, because the Oscars are coming up. And so we thought it'd be a good time to talk about copyright option agreements generally, and in particular, how they drive the movies that get made and the movies that make it to theaters. And so I thought about wearing my aviators for this episode…”

Mark Fancourt-Smith 00:51
But the audio medium…

Alixandra Stoicheff 00:52
Ya, being an audio medium, exactly! It may not have made too much of a difference, but we wanted to chat a little bit about option agreements today. So Mark, what can you tell me about the sort of two types of common option agreements that are out there?

Mark Fancourt-Smith 01:07
Well, perhaps we can take a step back and look at how movies are created. Some are original screenplays, some are what's known as adapted, whether they're adapted from some other literary work, there has to be an agreement with the original author by way of which these studios can get the rights to use the story, commonly called option agreements. And they can often have there's two types, there's ones which are simply for a specific length of time or which can be terminated after a certain amount of time. And then there are others which are perpetual subject to use. So on that one, for example, if you've ever wondered why we keep getting reboots of the Spider Man series every five years as if America has forgotten how he became Spider Man, it's because if Sony doesn't make a Spider Man movie every five years or so, they lose the rights to the character. And they are absolutely not going to do that. Which is why then we have had at last count three, I think, retellings of the origin story and trying to start another franchise to make sure that they retain the rights. Top Gun, for example, as we're going to talk about was different. It was done pursuant to an option agreement, which was terminable. So for those of you who don't know, in 1983, there was an article written called Top Guns (by Ehud Yonay), about the Naval Air Station in Miramar, California, the fighter trading station, Paramount Pictures shortly after it was written obtain the rights to it. And the underlying article had been written in a very sort of, not sort of a reporting way, but rather really focusing on a couple of pilots and their journey through the training program. And so seeing that it seemed like a story that could be adapted into a movie, which, of course, it was, Tony Scott directed Tom Cruise start in the 1985 movie Top Gun. And so that was how they derived the rights to that story. Now, the reason we're talking about it today is because there is a copyright infringement lawsuit, which has been brought by the estate of the author of that article as against Paramount Pictures in respect of Top Gun: Maverick.

Alixandra Stoicheff 03:14
Okay. And I'm guessing that that lawsuits been brought in California?

Mark Fancourt-Smith 03:18
Yes.

Alixandra Stoicheff 03:19
Yeah. And so but what can you tell us about that lawsuit and sort of where it's at in terms of the stage of it?

Mark Fancourt-Smith 03:26
Well, in, you sort of have to go back almost. And look at the tortured production history of Top Gun: Maverick, which, you know, the idea for it started in 2010. Cruz was attached to it in 2016, the script was being written and kind of finalized in 2017. And then in January 2018, the estate wrote to Paramount Pictures and sent them a notice of termination of option, which was going to take effect in two years. So it was, I think, January 24 2018, giving notice that the option agreement was going to expire on January 24 2020. Now, we don't have Paramount's side of the story yet, as we hear what they brought was sort of a procedural motion to try and dismiss. And so they haven't actually filed a statement of defense yet, but it's interesting to note that they started shooting principal photography in June of 2018. So after the notice had been given, the movie was supposed to come out in the summer of 2019. So would have come out before the option agreement terminated. But then during the filming of it, they needed extra time for some of those fantastic action sequences, which were just incredible.

Alixandra Stoicheff 04:32
Which were amazing.

Mark Fancourt-Smith 04:34
Which were amazing. I think we can take it as read. Absolutely amazing. And, and if Top Gun doesn't win Best Picture, this will be a crime against humanity. But then it was it was pushed back and going to be released in June of 2020. Of course, certain events which we may remember starting in March of 2020 or so, aka COVID. Then push that back because they were not going to release it in theaters. So ultimately, it wasn't even released until 2020 to two years after the expiry of the option agreement, and so the lawsuit is for a couple of things. One is copyright infringement saying this is still derived from the original article. And there's substantial similarity to that, as well as breach of contract because no attribution was given to the author when the movie was released. And that was required under the option agreement as well.

Alixandra Stoicheff 05:21
Right. So basically, you publish this too late to publish it after the option agreement had expired.

Mark Fancourt-Smith 05:26
Yeah, you didn't have the right to make use of, or to derive something from the original work at the time that this was put into the world at the time that this was released.

Alixandra Stoicheff 05:35
Right.

Mark Fancourt-Smith 05:36
And therefore liable for damages or injunctive, relief, and so on.

Alixandra Stoicheff 05:39
And so at this stage, Paramount hasn't filed a statement of defense, yet, nothing has been proven. And everything is just, of course, allegations at this stage. So we haven't heard yet what their official position is in response to the lawsuit. But we do certainly have an inkling of it, as I understand from the motion to dismiss that they filed, right? And so what was that all about? They were trying to dismiss the entirety of the claim at an earlier stage.

Mark Fancourt-Smith 06:02
Yeah, what you can do, and we have similar processes, here in BC and Alberta, which is what they said was the way this has been pleaded itself is deficient. So there's certain elements you have to plead to make out a claim for copyright infringement. And they said the way that the claim has been drafted itself is deficient. So even without considering the evidence, even without considering the merit, this Court should strike out that claim. Because the essential elements just aren't there. They did go a little bit into the question of substantial similarity, because when it comes to copyright infringement, it has to be substantially similar. It's sort of a common that there's some differences between our jurisdictions. But what is similar is, it can't just be a completely insignificant similarity, it has to be something substantial or substantial similarity of a substantial amount. And so although they were pleading, you're arguing this on primarily a legal basis, they Paramount did sort of set out its position that it doesn't consider the Top Gun: Maverick is substantially similar to the original 1983 article at all. So there was some discussion of that. But basically, they said, We don't even need to plead a defense yet. We shouldn't have to this is just deficient on its face, and you should dismiss it as such.

Alixandra Stoicheff 07:17
Okay. And what did the court say?

Mark Fancourt-Smith 07:19
No. The court, essentially, the court found, and it reiterated that it said like at this point, it's not the function of the court to go into the merits, it really is a question of have the pleadings been done sufficiently. You don't have to have complete encyclopedic exactitude, but you know, the courts do require a certain standard, because, of course, it's only fair to a defendant to know what exactly is the case they have to meet. What have they been said to do. And so that's sort of what the function of these kinds of applications are for us to sort of police the pleadings a bit. So they can't just be completely vague pleadings, where a defendant just says, Well, what am I supposed to have done? What you know, how am I supposed to defend against this, but the court found that here, it had been sufficiently pleated, it was clear to the defendant, you know, what they were alleged to have done or not done, and that the essential elements for copyright infringement had had been made up. And so the motion to dismiss was itself dismissed this last November.

Alixandra Stoicheff 08:18
Right. Okay, and not being familiar with California process. But in Canadian jurisdiction, what would then typically happen is, of course, that it would proceed through the normal litigation path towards a trial absent sort of any sort of negotiation or resolution or, or other way of concluding the matter. But basically, we know at this stage, the case is continuing.

Mark Fancourt-Smith 08:39
Yeah. And actually, to your point about some other avenues. Looking at the court docket, it appears that a mediator has been selected, so the parties are going to explore alternative dispute resolution. But yeah, in the absence of the summary dismissal, the litigation proceeds either data litigation track or alternative dispute resolution. And, and it looks like that's what's happening here in the in the California case.

Alixandra Stoicheff 09:00
It's also interesting, just as a side note that, you know, we are getting to see this through publicly filed documents or review these publicly filed documents, and that it isn't going through an arbitration process, because often these types of things are behind closed doors, we don't get to see the private arbitration documents, but here, you know, these documents are publicly available being part of the court system.

Mark Fancourt-Smith 09:21
Yes, interesting question as to whether or not they will be required to file a statement of defense before the mediation because if they're not, then as a result of mediation, we may never see what they said their defense was, but one of the things which was interesting was this idea of substantial similarity. And there's sometimes a misconception as to what is protected by copyright. And it's, it's part of the fundamental bargain of intellectual property law. You know, whether it's patents or copyrights is, you know, for contributing to either the increase of knowledge and patents you get in return a limited time monopoly for it. That's your reward for copyright for sort of contributing, if we're talking about the literary area for contributing to culture, you are given a time limited monopoly on that work or the expression of it. And so what's protected is not the ideas themselves. You can't copyright the idea of a flight school or fighter jets or pilots. But what is protected is the expression of it. How was the story actually written and expressed. And so that's interesting, because sometimes, there's the misconception that is the ideas themselves that are protected. And there was a case of back in 1990 in Calgary, where a Calgary man sued 20th Century Fox and George Lucas, alleging that he had come up with the idea of Ewoks, which were the little fuzzy creatures that return to the Jetta.

Alixandra Stoicheff 10:43
Oh, oh I know Ewoks.

Mark Fancourt-Smith 10:45
Yes, yeah. So he said that he had come up with a sort of a character sketch of sketching I mean, words, not just the drawings, and actually called them Ewoks, these little fuzzy creatures who lived on a forest planet. And then a friend of his had written a script called Space Pets, and had sent it had sent it to 20th Century Fox and George Lucas. Well, and it went to trial. And so ultimately, what was found was that, based on the work that the plaintiff had done, which was just kind of the notes about the character, those were not specific enough to really constitute expression of a character, who could then be protected. It was really just kind of ideas about a primitive species of alien living on a planet. His friend had put it into the screenplay, but his friend's screenplay wasn't that issue. It was just the character notes. And, and he said, Well, look, it's called an Ewok. You know, what more do you need to know, and here you are. But the court found in that case, it wasn't sufficiently expressed so as to be able to be protected. An interesting side note was that what came out in the trial, as well was George Lucas says, I look successful movies, breed lawsuits. And for that reason, I never ever, ever open unsolicited mail for precisely this reason. I may miss out on some great collaboration ideas. But in the interest of self preservation, I never opened the letter unless I had asked for it, or I knew who is or I was expecting it or knowing who it was from. And that's, and that's not an uncommon practice in movie studios just to try and if you can, if you can say you have an established process, it provides some protection in terms of cases like this,

Alixandra Stoicheff 12:26
That's super interesting. I wonder if the script for space pets was ever filed in court and, and whether we could get our hands on it.

Mark Fancourt-Smith 12:34
We may be able to, we may be able to. As a last point, just on copyright, just like patents, and it's time limited, you know, the, the author and their estate does not have protection over the expression or over the works forever, it's generally life of the author plus 75 years. And that is notable for a movie, which has not been nominated for Best Picture, and never will be by all accounts. Because what has just to Disney's chagrin, become public domain is Winnie the Pooh. Disney owns the rights to Winnie the Pooh. But now Winnie the Pooh is public domain. And anybody can use those characters to write any sort of story they want. And you probably know sort of where this is going.

Alixandra Stoicheff 13:18
I know where this is going.

Mark Fancourt-Smith 13:20
Winnie the Pooh, Blood and Honey, a low budget slasher movie, which by all accounts is dreadful, was just released this year it takes and almost gleefully. Part of their marketing was it's in the public domain now. So all bets are off. And speaking of which, here is that movie.

Alixandra Stoicheff 13:41
Oh, poor Piglet…

Mark Fancourt-Smith 13:43
Yeah, but yeah, just to put a final point of that, again, it's time limited protection. So I suppose I'm not sure when Mr. Yonay who wrote the Top Guns article passed away but 75 years after that, anybody will be able to make your any movies derivative of that. Should there still be a market for Top Gun movies? Because why not?

Alixandra Stoicheff 14:02
Yeah, well and if they make them as well as they made this one this summer, oh my gosh. Yeah. Okay, well, I'll be watching the Oscars. I'll be thinking of this when I'm watching it. And thanks for explaining all this.

Mark Fancourt-Smith 14:16
My pleasure is as we've said, part of the joy of being the host of the podcast is sometimes we can hijack it to talk about things. Like Top Gun, we'll add that to our list of Led Zeppelin, The Tragically Hip, beer and Top Gun of important topics we've covered. Thank you for joining us today on LawsonInsight and special thanks to Brittany Haines and Christian Stonehouse for producing, and to Lauren Dresselhuis for all the research on today's episode.

Alixandra Stoicheff 14:42
You can stay up to date by connecting with us on social media using the handle @LawsonLundell, and by subscribing to the podcast on Apple, Spotify or Google podcasts. Thanks so much for listening.

About LawsonInsight

Hosted by partner Mark Fancourt-Smith and associate Alix Stoicheff, LawsonInsight is a look inside the legal mind. If you would like us to cover a particular topic, please email your requests to inquiries@lawsonlundell.com

Don't have time at the moment?

Our podcast is currently available on Apple Podcasts, Spotify, Google Podcasts and iHeartRadio. Please subscribe using our RSS feed link here or on the available platforms below.

^{Legal Disclaimer: The information made available on this webpage is for information purposes only. It does not constitute legal advice, and should not be relied on as such. Please contact our firm if you need legal advice or have questions about the content of this webpage.}