What Survives the Filter: Copyright

In Yonay v. Paramount, the Ninth Circuit affirmed summary judgment for Paramount over 'Top Gun: Maverick,' holding that a film sharing a real Navy program with a 1983 magazine article copies facts, not protected expression.

In Yonay v. Paramount Pictures Corp., No. 24-2897 (9th Cir. Jan. 2, 2026), a unanimous panel of the U.S. Court of Appeals for the Ninth Circuit affirmed the grant of summary judgment to Paramount in the closely watched copyright suit over Top Gun: Maverick. The published opinion, authored by Judge Eric D. Miller and joined by Judges Andrew D. Hurwitz and Jennifer Sung, upholds the April 5, 2024 ruling of District Judge Percy Anderson of the Central District of California (No. 2:22-cv-03846-PA-GJS). The result is a clean, doctrinally conventional victory for the studio, and a compact restatement of how the idea/expression and fact/expression distinctions discipline a substantial-similarity claim built on a real-world subject.

At a glance

Case: Yonay v. Paramount Pictures Corp., No. 24-2897 (9th Cir.); D.C. No. 2:22-cv-03846-PA-GJS
Decided: January 2, 2026 (argued June 3, 2025); opinion by Judge Miller, joined by Hurwitz and Sung
Holding: Top Gun: Maverick and the 1983 article “Top Guns” are not substantially similar in protectable expression; the expert rulings were not an abuse of discretion; and the contract claim fails because the sequel was not “produced … hereunder,” which the panel read to mean produced using the rights the agreement conveyed.
Status: Affirmed; rehearing denied February 12, 2026. A petition for certiorari was filed July 10, 2026 and docketed as No. 26-61 (response due August 13, 2026). Status as of July 17, 2026.

The facts

The heirs of journalist Ehud Yonay (his widow Shosh and son Yuval) own the copyright in “Top Guns,” an 11-page 1983 California Magazine article about the Navy Fighter Weapons School. Yonay granted Paramount all rights to the article in 1983 in exchange for a fixed payment and a promise of credit on films “produced by [Paramount] hereunder and substantially based upon or adapted from” the article. Paramount credited him as the inspiration (“suggested by”) for 1986’s Top Gun. After Yonay’s death, his heirs served a notice terminating that grant under 17 U.S.C. § 203(a), effective January 24, 2020. Paramount then released Top Gun: Maverick in 2022 without crediting or paying the Yonays, and the heirs sued for copyright infringement and breach of contract.

The extrinsic test does the work

The panel narrowed the dispute quickly. Ownership was conceded; the only question was unlawful appropriation: whether Paramount copied original, protected aspects of the article. Because the intrinsic test (the subjective reaction of an ordinary observer) is reserved for the jury, summary judgment turned entirely on the extrinsic test, which assesses objective similarities after a court has “filter[ed] out and disregard[ed] the non-protectible elements,” quoting Cavalier v. Random House. For literary works, that means comparing plot, themes, dialogue, mood, setting, pace, characters, and sequence of events.

Judge Miller framed the central problem with a line that will be quoted often: the Yonays’ “claim of substantial similarity fails because what is protected is not similar, and what is similar is not protected.” The article contains genuinely original expression (its “vivid phrasing and innovative structure,” written in a “New Journalism” register), but none of that language appears in the film. The similarities the plaintiffs could identify existed only at “such a high level of abstraction that the similarities do not involve protected expression.”

The opinion is most instructive working through the categories one by one. On plot, the panel observed that “Top Guns” is nonfiction with no conventional plot, while Maverick has a traditional three-act structure built around a specific mission. The shared throughline (elite pilots train at Top Gun and deploy) “is a factual one: Top Gun is a real program.” The court took the same approach to the F-14’s variable-sweep wings, used as a plot device in the film’s stolen-jet escape: the F-14 is a real plane with variable-sweep wings, and “the basic facts of the design do not enjoy copyright protection.” The “evocative language” the article used to describe them, its image of wings that “open to the sides like an eagle’s,” does not appear in the film. Characters fared no better: the people in the article are real, and “[a] character based on a historical figure is not protected for copyright purposes” (Corbello v. Valli). Dialogue overlap reduced to the two-word phrase “fight’s on,” “something that real fighter pilots say.”

Selection-and-arrangement and the experts

The Yonays’ strongest theory was the Metcalf/Skidmore “selection and arrangement” argument: even unprotectable elements, arranged in an original pattern, can be protected as a combination. The panel acknowledged the doctrine but found the plaintiffs had not identified an original arrangement shared by both works: only a list of high-level commonalities that, individually, were unprotected facts or ideas. Without “a coherent pattern, synthesis, or design” actually copied into the film, stacking unprotected similarities does not manufacture protectable expression.

The opinion also blessed the district court’s evidentiary rulings. The trial court excluded the Yonays’ literary expert for “fail[ing] to filter out” unprotected facts (rendering his substantial-similarity opinion unhelpful) while admitting Paramount’s expert, a Navy Reserve officer and former Top Gun instructor, whose testimony on the article’s factual accuracy could help the factfinder separate fact from expression. The lesson for litigants is pointed: an expert who compares works without performing the analytic dissection copyright law requires is not merely unpersuasive but inadmissible.

The contract claim

The breach-of-contract theory had a certain elegance. The Yonays argued that because they had terminated the 1983 grant under § 203(a) before the sequel’s release, Paramount made Maverick without rights, yet the contract promised credit on qualifying films. The court read the agreement to require two conditions for credit: the film must be (1) “produced by [Paramount] hereunder” and (2) “substantially based upon or adapted from” the article. Because the two are joined by “and,” the panel held, both must be satisfied, and it rejected the Yonays’ argument that the clause is a hendiadys expressing a single idea.

The panel then resolved the claim on the first condition alone, and its reasoning did not turn on the timing of the termination. Reading “produced … hereunder” to mean “produced using the rights conferred by this agreement,” the court held that because Maverick did not infringe the copyright in “Top Guns,” Paramount never used the copyright it had received through the agreement to make the film. Maverick therefore was not produced under the agreement. Having found the first condition unmet, the court did not decide whether the second was satisfied. The finding of non-infringement, not the § 203 notice, is what defeated the credit claim.

Open questions

Further review. The Yonays have turned to the Supreme Court. After Justice Kagan granted an extension (application No. 25A1217), they filed a petition for certiorari on July 10, 2026, docketed as No. 26-61; Paramount’s response is due August 13, 2026. As of July 17, 2026 the petition is pending, and the odds of a grant in a fact-bound substantial-similarity case are low.
Fact-based works after this decision. The opinion sharpens, but does not resolve, how much “selection and arrangement” protection a work of literary nonfiction about a real institution can claim when a later author returns to the same real subject.
The role of the jury. By resolving everything on the extrinsic test, the panel reinforces that strong fact-filtering can keep substantial-similarity disputes from ever reaching the intrinsic test.

Implications

Real subjects, thin protection. Authors who write vividly about real programs, places, and people own their expression, not the underlying facts. A later film about the same real subject can share a great deal at the level of fact and idea without infringing.
Summary judgment remains viable. Despite recurring debate over whether substantial similarity is for the jury, careful filtering let both courts resolve the claim as a matter of law.
Expert discipline is dispositive. A comparison expert who does not filter out unprotected elements risks exclusion, and with it the claim.
Termination is not a credit lever. Section 203 lets heirs recapture a grant, but recapture does not by itself trigger credit obligations from the original deal. Here the credit clause reached only films made using the granted rights, so proving non-infringement was also what defeated the contract claim.

Frequently asked questions

Did Paramount win on the merits or on a technicality? On the merits, at summary judgment. The Ninth Circuit affirmed that Top Gun: Maverick and the 1983 article are not substantially similar in protectable expression, and separately affirmed the contract ruling.

Is the case completely over? Not yet. The Ninth Circuit’s January 2, 2026 decision ended the appeal, and rehearing was denied on February 12, 2026, but the Yonays filed a petition for certiorari on July 10, 2026, docketed as No. 26-61. Paramount’s response is due August 13, 2026. The Supreme Court grants review in only a small fraction of petitions.

Why didn’t the heirs’ § 203 termination help them? The court’s contract reasoning did not turn on the timing of the termination. The agreement conditioned credit on a film “produced … hereunder,” which the panel read to mean produced using the rights the agreement conveyed. Because Maverick did not infringe the article’s copyright, Paramount never used those rights, so the film was not produced under the agreement.