The heirs to a 1983 magazine article that inspired the original “Top Gun” film are appealing their lawsuit against Paramount to the Supreme Court, according to a court filing obtained by TheWrap. The suit was thrown out in 2024 when a federal judge rejected the claim that Paramount should have renegotiated its deal with the family for “Top Gun: Maverick.”
The plaintiffs are the heirs of Ehud Yonay, who wrote an article titled “Top Guns” for California Magazine that earned him a “story by” credit for the original film. The Yonays are now appealing to the Supreme Court to resolve a circuit split related to how the line of “substantial similarity” can be determined in copyright cases.
The Ninth Circuit applies a two-step approach to determine substantial similarity in copyright infringement cases such as these. The first step, in which the court applies an “extrinsic test,” divides a work into “its component parts (e.g., its “ ‘plot, themes, dialogue, [and] mood’ ”); filter out any unprotectable elements; and compare what remains of each component one-by-one to the corresponding components of the accused work,” per the appeal.
Once a work passes that extrinsic test, only then will the court move onto an “intrinsic test” in which “a factfinder assesses the works’ overall similarity from ‘the standpoint of the ordinary reasonable observer.’’”
This is different, the appeal notes, from how the Second, Third, Fifth, Seventh and D.C. Circuits operate in similar copyright cases. These circuits skip the dissection step, examining similarity in its totality without the burden of passing an extrinsic test first.
“That circuit split has enormous consequences for copyright holders and for the copyright-intensive industries that contribute $2 trillion to the Nation’s economy,” the appeal reads. “The Second and Ninth Circuits—homes to the publishing and entertainment industries—have the most copyright-heavy dockets in the Nation. Yet copyright holders get different treatment in each.”
A representative for Paramount did not immediately respond to TheWrap’s request for comment.
The Yonay heirs now appeal to the Supreme Court in an effort to determine holistically after the 2024 ruling that “Maverick” is not materially similar to the 1983 article.
According to the initial lawsuit, filed in June of 2022, the copyright was legally re-claimed in 2018, a statutory termination triggered after enough time had passed. The suit says the “Top Gun” sequel, a direct derivative of his original story, is in violation of that claim, which Paramount ignored.
A third “Top Gun” film was officially confirmed by Paramount at CinemaCon 2026.