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“A copyright license isn’t forever, and can be taken back by the original artist (or their estate) after 35 years.”

TOP copyright: Maverick

I don’t have a lot of details on this, because it’s happening right now, but here’s the gist: Back in 1983, an article by Ehud Yonay called “Top Guns” appeared in California magazine. The article described the lives of elite navy fighter pilots, and Paramount Pictures secured the movie right for the article. In 1986, Paramount released Top Gun, which went on to be a hugely popular and profitable film for the studio.

In 2022, Paramount released a sequel to Top Gun, called Top Gun: Maverick. Maverick was just released to theatres, but shows every sign of being as popular as its predecessor. 

Recently, the estate of author Ehud Yonay filed a copyright infringement lawsuit against Paramount, alleging that the sequel draws heavily on the original article, that the 1983 copyright license reverted to the estate in 2021, and that the studio failed to obtain a license to produce the sequel. The suit seeks monetary damages and demands that the sequel be immediately pulled from theatres.

Even without all the details yet, we know a few things. First, it’s true that a copyright license isn’t forever, and can be taken back by the original artist (or their estate) after 35 years. (17 US Code § 203) The Copyright Act states, actually, that once 35 years have passed, the author has a window of five years to notify the licensee that they’re taking back the license. If they do nothing and the window closes, the license remains intact for the statutory period of copyright protection (generally, the author’s life plus 70 years).

Here, the Yonay estate claims they exercised their termination right in 2018 (exactly 35 years after it was granted). What we don’t know yet is whether or not they notified Paramount as the statute requires (“by serving an advance notice in writing, …upon the grantee. … The notice shall state the effective date of the termination…and the notice shall be served not less than two or more than ten years before that date. A copy of the notice shall be recorded in the Copyright Office before the effective date of termination, as a condition to its taking effect.”)

If the estate did all that, and Paramount went ahead with the sequel, then Paramount may have a problem on its hands. On the other hand, if the estate didn’t follow the statute, Paramount should be OK (although a third sequel would probably require a new license). Paramount claims that the sequel is not based on Yonay’s article, but on characters and situations created in the original film. If that’s true, then Paramount created original, unique characters “inspired” by the article, but is free to do with them what it likes; including putting them in a sequel three decades later.

In any case, it is highly unlikely that a summer blockbuster movie would be pulled from theatres, even if Paramount blatantly disregarded the Yonay’s copyright. Instead, the Yonay estate could be looking at a significant financial windfall in that case.

(See Hernandez, Joe, “Paramount Pictures faces copyright lawsuit over ‘Top Gun: Maverick'”, NPR  https://www.npr.org/2022/06/06/1103402040/paramount-pictures-copyright-lawsuit-top-gun-maverick(2022).

 

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