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 film.

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: Maverick was "obviously derivative" of the magazine story.

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: Maverick. 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.

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