Firing their first shot on June 6, 2022, Shosh Yonay and Yuval Yonay, heirs of Ehud Yonay, took aim at Paramount by filing a complaint in Federal Court asserting that the movie Top Gun: Maverick, infringes upon a copyrighted story written by Ehud Yonay (“Story”). Shosh and Yuval claim that in May of 1983, Paramount obtained from Ehud, exclusive motion picture and allied rights – creation of merchandise or a television series – to the Story. Shosh and Yuval assert further that in January of 2018, they notified Paramount of their election to terminate those rights as of January of 2020.
On May 27, 2022, flying high over complaints from Shosh and Yuval and well after the termination date, Paramount released Top Gun: Maverick domestically bringing in over $120,000,000 during its opening weekend. Have Shosh and Yuval found their cash cow??
Do Shosh and Yuval have legal standing?
First, can Shosh and Yuval ‘elect to terminate’ rights in which they did not give? 17 U.S.C. § 203(a)(2)(A-B) states that in the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination under the following conditions:
[w]here an author is dead, his or her termination interest is owned, and may be exercised, as follows: [t]he widow or widower owns the author’s entire termination interest unless there are any surviving children or grandchildren of the author, in which case the widow or widower owns one-half of the author’s interest and [t]he author’s surviving children, and the surviving children of any dead child of the author, own the author’s entire termination interest unless there is a widow or widower, in which case the ownership of one-half of the author’s interest is divided among them.
This means that Congress provided copyright owners with the ability to recapture their works thus allowing the copyright owner to take actions such as renegotiating an agreement or creating their own works based on the original work.
Here, there is no indication that the work is for hire, the grant does not appear to be by will and allegedly occurred after 1977, plus Shosh is the widow and Yuval is the son of Ehud. It is clear that in this case, as the grant of rights occurred after 1977 and that Shosh and Yuval are widow and son, respectively, of Ehud, that they had the right to terminate the extension of rights to Paramount.
Did Shosh and Yuval provide Paramount with proper notice?
17 U.S.C. § 203(a)(3-4) provides that termination of the grant may be effected at any time during a period of five years beginning at the end of thirty-five years from the date of execution of the grant and that the termination shall be effected by serving an advance notice in writing, signed by the majority of the owners and shall state the effective date of the termination, which shall fall within the five-year period specified by clause (3) of the subsection, and the notice shall be served not less than two or more than ten years before that date.
In other words, the termination period began May 18, 2018 and ends May 18, 2023 requiring a notice of termination effective January 2020 to be served in January 2018. Here, Shosh and Yuval allege that Ehud assigned the rights to Paramount on May 18, 1983 and then they gave notice to Paramount in January 2018, with their intent to terminate the rights effective January 2020. Therefore, Shosh and Yuval appear to have met the requirements for notice.
Will the salvos of Shosh and Yuval’s complaint find their target?
Although Shosh and Yuval may succeed in showing that they provided proper notice of termination, their dogfight is far from over. Shosh and Yuval must prove that Top Gun: Maverick is a derivative of the Story and that Paramount – with notice of the termination of rights – proceeded to make and publish Top Gun: Maverick after the notice. However, Paramount may have a countermove or defense to avoid the salvos.
It is likely Paramount will assert that Top Gun: Maverick is not based on the Story and therefore is not a derivative work and therefore cannot infringe the Story. Paramount may also assert that even if the notice of termination was properly served and that Top Gun: Maverick is a derivative work, it was substantially completed prior to the termination in January 2020. Therefore, as the original grant gave Paramount to prepare derivatives and the right to continue to show them, any notice from Shosh and Yuval did not apply to Top Gun: Maverick.
It remains to be seen who will prevail but you can be assured that this will be a dogfight not to miss!
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