Yonay v. Paramount

Case 2:22-cv-03846-PA-GJS Document 105 Filed 04/05/24 Page 1 of 14 Page ID #:7947
UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No. CV 22-3846 PA (GJSx) Date April 5, 2024
Title Shosh Yonay, et al. v. Paramount Pictures Corporation, et al.
Present: The Honorable PERCY ANDERSON, UNITED STATES DISTRICT JUDGE

Kamilla Sail-Salesman Not Reported
Deputy Clerk Court Reporter / Recorder
Attorneys Present for Plaintiffs: Attorneys Present for Defendants
Proceedings: IN CHAMBERS — COURT ORDER
Before the Court are the parties’ cross-motions for summary judgment (Docket Nos. 58
and 62) and motions to exclude their respective expert witnesses (Docket Nos. 54, 56–57).1/ The
motions have been fully briefed. Pursuant to Rule 78 of the Federal Rules of Civil Procedure
and Local Rule 7-15, the Court finds these matters appropriate for decision without oral
argument. The hearings calendared for January 8, 2024, were vacated and the matters taken off
calendar.
I. Background
Plaintiffs Shosh Yonay and Yuval Yonay (collectively “Plaintiffs”) are the widow and
son of Ehud Yonay (“Yonay”), the author of a magazine article“Top Guns” (the “Article”)
published in California Magazine on April 21, 1983. The Article is an account of the
experiences of F-14 pilots and radio intercept officers as they undergo training at the Navy’s
Fighter Weapons School (known as “Top Gun”). After the Article’s publication, Defendant
Paramount Pictures Corporation (“Defendant”) and Yonay executed an Assignment of Rights,
dated May 18, 1983, assigning to Defendant the motion picture rights to the Article. The
Assignment of Rights also required Defendant to credit Yonay “on the film of any motion
picture photoplay” that is “produced . . . []under” the Assignment of Rights “and substantially
based upon or adapted from [the Article] or any version or adaptation thereof . . . .” (Docket No.
62-4 at p. 3, section 7(b).) In 1986, Defendant released the motion picture “Top Gun” (the
“Original Film”). Yonay received a “suggested by” credit. The story follows fictional
1/
Plaintiffs also filed a Motion to Strike Evidence Not Produced During Discovery
(“Motion to Strike”). (Docket No. 82.) The Court does not rely on the evidence that is the
subject of the Motion to Strike in ruling on the parties’ cross-motions for summary judgment or
motions to exclude one another’s expert witness reports and testimony. Accordingly, Plaintiffs’
Motion to Strike is moot.
CV-90 (10/08) CIVIL MINUTES - GENERAL Page 1 of 14

characters Pete (“Maverick”) Mitchell and Nick (“Goose”) Bradshaw as they train at the Top
Gun Naval Fighter Weapons School.
On January 23, 2018, after Yonay’s death, Plaintiffs sent Defendant a Notice of
Termination (“Notice”) terminating Defendant’s rights to the Article pursuant to 17 U.S.C. §
203(a), effective January 24, 2020. On May 27, 2022, Defendant released the sequel to the
Original Film, “Top Gun: Maverick” (the “Sequel”) without crediting Yonay. In the Sequel, set
thirty years after the Original Film, Maverick, now a test pilot, returns to Top Gun to train a new
class of graduates for a dangerous mission. Among them is Goose’s son, who holds Maverick
responsible for his father’s death.
Plaintiffs commenced this action on June 6, 2022. The First Amended Complaint
(“FAC”) alleges three claims: (1) breach of contract, (2) declaratory relief, and (3) copyright
infringement. Plaintiffs allege that Defendant breached the Assignment of Rights by not
crediting Yonay in the Sequel. (See Docket No. 16 ¶ 52.) The FAC also alleges that the Sequel
infringes Plaintiffs’ copyright because “key elements” in the Sequel are substantially similar to
the Article. (Id. ¶ 35.) Plaintiffs also seek a declaration that the Sequel is a “derivative” of the
Article and that Defendant “does not have any rights to make, exploit, or distribute” the Sequel.
(Id. ¶¶ 64–65.)
II. Motions to Exclude Expert Reports and Testimony
At the summary judgment stage of a copyright infringement action courts conduct an

objective analysis of the works at issue to assess whether they are “substantially similar.” See
Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir. 2002). This is known as the
“extrinsic test.” Id. When conducting the extrinsic test, courts must filter out the elements of the
works that are not protected by copyright law, such as facts, general plot ideas, and familiar
stock scenes. See id. at 823; Shaw v. Lindheim, 919 F.2d 1353, 1356 (9th Cir. 1990), overruled
on other grounds by Skidmore as Tr. for Randy Craig Wolfe Tr. v. Led Zeppelin, 952 F.3d 1051
(9th Cir. 2020). The extrinsic test “is often aided by expert testimony.” Bernal v. Paradigm
Talent & Literary Agency, 788 F. Supp. 2d 1043, 1059 (C.D. Cal. 2010).
Plaintiffs rely on the expert testimony of Henry Bean to support their contention that the
Article and Sequel are substantially similar. Defendant relies on the expert testimony of Andrew
Craig and James McDonald to support its contention that the two works are not substantially
similar. The parties move to exclude the testimony of their respective expert witnesses pursuant
to Rule 702 of the Federal Rules of Evidence.


In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court firmly established
the district court’s role as the gatekeeper of expert testimony. 509 U.S. 579, 113 S. Ct. 2786,
125 L. Ed. 2d 469 (1993). The Rules of Evidence “assign to the trial judge the task of insuring
that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.”
Id. at 597, 113 S. Ct. at 2799. Rule 702 codifies this standard:
A witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an
opinion or otherwise if the proponent demonstrates to the court that
it is more likely than not that:
(a) the expert’s scientific, technical, or other specialized

knowledge will help the trier of fact to understand the evidence or to
determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and

methods; and
(d) the expert’s opinion reflects a reliable application of the

principles and methods to the facts of the case.
Fed. R. Evid. 702.
Rule 702 embodies “the twin concerns of ‘reliability’ . . . and ‘helpfulness.’” Stilwell v.
Smith & Nephew, Inc., 482 F.3d 1187, 1192 (9th Cir. 2007) (quoting United States v. Mitchell,
365 F.3d 215, 234 (3d Cir. 2004)) (internal quotations omitted). “Whether testimony is helpful
within the meaning of Rule 702 is in essence a relevancy inquiry.” Hemmings v. Tidyman’s
Inc., 285 F.3d 1174, 1184 (9th Cir.2002). “Expert opinion testimony is relevant if the
knowledge underlying it has a valid connection to the pertinent inquiry. And it is reliable if the
knowledge underlying it has a reliable basis in the knowledge and experience of the relevant
discipline.” Primiano v. Cook, 598 F.3d 558, 565 (9th Cir. 2010) (internal quotations omitted).
The test for reliability “is not the correctness of the expert’s conclusions but the soundness of his
methodology.” Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1318 (9th Cir.1995). The
proponent of the expert bears the burden of establishing, by a preponderance of the evidence,
that the expert’s testimony is admissible under Rule 702. See Daubert, 509 U.S. at 591 n.10;
Lust By & Through Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 598 (9th Cir. 1996).


A. Plaintiffs’ Expert Henry Bean
Henry Bean (“Bean”) is a writer and former adjunct professor at Columbia University’s
graduate film school and New York University’s Tisch School of the Arts. Bean opines that
there are numerous similarities between the Article and the Sequel. However, Bean fails to filter
out the elements of the Article and Sequel that are not protected by copyright law (i.e., facts),
which renders his opinions unhelpful and inadmissible. See Johannsongs-Publ’g Ltd. v.
Lovland, No. CV 18-10009-AB (SSX), 2020 WL 2315805, at *4–6 (C.D. Cal. Apr. 3, 2020)
(finding expert report that did not filter out unprotected elements to be unhelpful and
inadmissible), aff’d, No. 20-55552, 2021 WL 5564626 (9th Cir. Nov. 29, 2021).2/
Bean’s opinions are also unhelpful to the extent he provides a subjective, rather than
objective, comparison of the Article and Sequel. See Apple Computer, Inc. v. Microsoft Corp.,
35 F.3d 1435, 1442 (9th Cir. 1994) (explaining that the subjective comparison of two works –
referred to as the “intrinsic test” – is done with “no expert assistance”); Shaw, 919 F.2d at 1356
(“The intrinsic test . . . should measure substantial similarity in expressions . . . depending on the
response of the ordinary reasonable person . . . . In decisions under the intrinsic test, analytic
dissection and expert testimony are not appropriate.”) (internal quotations omitted). For
example, when comparing the dialogue in the Sequel to that in the Article, Bean cites to excerpts
from the Article and writes: “Those exact words may not appear in [the Original Film or the
Sequel], yet one feels them informing a lot of the dizzying and dazzling aerial footage of both
films, especially in the Sequel . . . .” (Docket No. 62-5 at p. 23 (emphasis added).)
Accordingly, Bean’s opinions are unhelpful and do not meet the standards for
admissibility set forth in Rule 702. The Court grants Defendant’s Motion to Exclude the Expert
Report and Testimony of Henry Bean.
2/
In support of their opposition to Defendant’s motion to exclude Bean’s report and
testimony, Plaintiffs filed a Declaration from Bean in which he asserts that he “tried as best as
[he] could to compare the elements of the works at issue that are protectable, while disregarding
those that are not.” (Docket No. 74-3 ¶ 9.) However, this contradicts Bean’s prior deposition
testimony. Bean testified that he “was not sitting there thinking, well, this goes in the protected
bucket and that goes in the unprotected bucket” when analyzing the two works. (Docket No. 54-
3 at p. 128:1–4.) See, e.g., Payan v. Los Angeles Cmty. Coll. Dist., No.
2:17-CV-01697-SVW-SK, 2018 WL 6164269, at *8 n.5 (C.D. Cal. Oct. 16, 2018) (finding
expert witness declaration inadmissible where the expert’s opinions in her new declaration
contradicted her prior deposition testimony).

B. Defendant’s Expert Andrew Craig
Andrew Craig (“Craig”) is a Commanding Officer in the Navy Reserve, as well as a

former Top Gun instructor. In his affirmative and rebuttal expert reports, Craig opines on the
factual accuracy of the Article. For instance, Craig opines that the Article accurately describes
the Top Gun program and the experience of flying a jet fighter. Craig also references facts that
were confirmed to him by other naval aviators, and facts that he learned from viewing historical
photographs and conducting research in the Navy’s Archives. Plaintiffs take issue with these
references, arguing that Craig’s reports should be excluded because they contain hearsay. The
Court declines to exclude Craig’s reports on that basis. See Hilt v. Foster Wheeler, LLC, 690 F.
App’x 482, 483 (9th Cir. 2017) (“[A]n expert may render an opinion based on facts or data . . .
that the expert has been made aware of . . . and may render an opinion that is not based on
firsthand knowledge or observation.”) (internal quotations and citations omitted); see also
EcoServices, LLC v. Certified Aviation Servs., LLC, 312 F. Supp. 3d 830, 839 (C.D. Cal. 2018)
(explaining that “experts are entitled to rely on hearsay in forming their opinions”) (internal
quotations omitted).
Plaintiffs also contend that Craig’s opinions are unhelpful, and that Craig is not qualified
to opine on literary similarities between the Article and Sequel. The Court is unpersuaded by
these arguments. As an initial matter, Craig does not opine on literary similarities; rather, he
opines on the factual elements of the Article as historical facts. His opinions are helpful
because, in ruling on the parties’ cross-motions for summary judgment, the Court must filter out
the unprotected, factual elements of the Article and Sequel to assess whether they are
substantially similar. See Shaw, 919 F.2d at 1356; Cavalier, 297 F.3d at 826. Accordingly, the
Court denies Plaintiffs’ Motion to Exclude the Expert Reports and Testimony of Andrew Craig.
C. Defendant’s Rebuttal Expert James McDonald
The Court does not rely on James McDonald’s rebuttal expert report or testimony in
ruling on the parties’ cross-motions for summary judgment below. Accordingly, Plaintiff’s
Motion to Exclude the Expert Report and Testimony of James McDonald, and evidentiary
objections to McDonald’s report and testimony, are moot.
III. Cross-Motions for Summary Judgment
A. Evidentiary Objections
The parties raise hundreds of evidentiary objections to certain evidence submitted by one
another, and to certain statements in each other’s Statements of Uncontroverted Facts. (See


Docket Nos. 70-2, 80, 93, 95.) Many of the objections are misguided blanket and boilerplate
objections or challenges to the relevance of particular information. The parties’ objections to
each other’s Statements of Uncontroverted Facts are largely arguments about the
characterization of certain facts and supporting evidence, rather than disputes about the facts
themselves. Additionally, many of the parties’ objections attack the admissibility of the current
form of certain evidence. However, on summary judgment, a court can consider evidence which
may be presented in an admissible form at trial, even if not presented in an admissible form at
the motion for summary judgment stage. See Fraser v. Goodale , 342 F.3d 1032, 1036 (9th Cir.
2003) (“At the summary judgment stage, we do not focus on the admissibility of the evidence’s
form.”); Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1120 (E.D. Cal. 2006) (“In
other words, when evidence is not presented in an admissible form in the context of a motion for
summary judgment, but it may be presented in an admissible form at trial, a court may still
consider that evidence.”) All of the parties’ objections to evidence or facts that the Court relies
on or cites in this Order are overruled.
B. Legal Standard
Federal Rule of Civil Procedure 56(c) authorizes summary judgment if no genuine issue
exists regarding any material fact and the moving party is entitled to judgment as a matter of law.
The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once the moving party does so, the non-moving party must go
beyond the pleadings and designate specific facts showing a genuine issue for trial. Id. at 324.
The court does “not weigh the evidence or determine the truth of the matter, but only determines
whether there is a genuine issue for trial.” Balint v. Carson City, 180 F.3d 1047, 1054 (9th Cir
1999). A “‘scintilla of evidence,’ or evidence that is ‘merely colorable’ or ‘not significantly
probative,’” does not present a genuine issue of material fact. United Steelworkers of Am. v.
Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989), cert denied, 493 U.S. 809 (1989)
(emphasis in original, citations omitted).
The substantive law governing a claim or defense determines whether a fact is material.
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631–32 (9th Cir 1987).
The court must view the inferences drawn from the facts “in the light most favorable to the
nonmoving party.” Id. at 631 (citation omitted). Thus, reasonable doubts about the existence of
a factual issue should be resolved against the moving party. Id. at 630–31. However, when the
non-moving party’s claims are factually “implausible, that party must come forward with more
persuasive evidence than would otherwise be [required] . . . .” California Architectural Bldg.
Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir 1987), cert denied, 484
U.S. 1006 (1988) (citation omitted). “No longer can it be argued that any disagreement about a
material issue of fact precludes the use of summary judgment.” Id. “[T]he plain language of


Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at
trial.” Celotex Corp., 477 U.S. at 322.
C. Analysis
Plaintiffs and Defendant each seek summary judgment on all three of Plaintiffs’ claims:
copyright infringement, declaratory relief, and breach of contract.
1. Copyright Infringement
“To establish a successful copyright infringement claim, a plaintiff must show that he or
she owns the copyright and that defendant copied protected elements of the work.” Cavalier,
297 F.3d at 822. “Copying may be established by showing that the infringer had access to
plaintiff’s copyrighted work and that the works at issue are substantially similar in their
protected elements.” Id. Here, the parties do not dispute Defendant’s access to the Article,
rather, they dispute the issue of substantial similarity.
In determining if two works are substantially similar, the Ninth Circuit’s test contains
both an extrinsic and an intrinsic component. Id. “At summary judgment, courts apply only the
extrinsic test; the intrinsic test, which examines an ordinary person’s subjective impressions of
the similarities between two works, is exclusively the province of the jury.” Funky Films, Inc. v.
Time Warner Ent. Co., L.P., 462 F.3d 1072, 1077 (9th Cir. 2006), overruled on other grounds by
Skidmore, 952 F.3d 1051. The extrinsic test is an “objective comparison of specific expressive
elements,” which “‘focuses on articulable similarities between the plot, themes, dialogue, mood,
setting, pace, characters, and sequence of events in two works.’” Cavalier, 297 F.3d at 822
(quoting Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1045 (9th Cir.1994))
(internal quotations and citations omitted); see Berkic v. Crichton, 761 F.2d 1289, 1293 (9th Cir.
1985) (explaining that the extrinsic test “compares, not the basic plot ideas for stories, but the
actual concrete elements that make up the total sequence of events and the relationships between
the major characters”).
“To apply the extrinsic test, courts must first distinguish between protectable and
unprotectable elements, and ask only whether the protect[a]ble elements in two works are
substantially similar.” Hanagami v. Epic Games, Inc., 85 F.4th 931, 942 (9th Cir. 2023)
(internal quotations omitted). “This process is referred to as ‘filtering.’” Id. “Copyright law
only protects expression of ideas, not the ideas themselves.” Cavalier, 297 F.3d at 823. Facts
are also not protected. See Shaw, 919 F.2d at 1356 (“[F]acts and ideas within a work are not


protected”). Additionally, “[i]t is well established that, as a matter of law, certain forms of
literary expression are not protected against copying.” Berkic, 761 F.2d at 1293. For instance,
general plot ideas, familiar stock scenes and themes, and scènes à faire (“situations and incidents
that flow naturally from a basic plot premise”) are unprotected. Cavalier, 297 F.3d at 823; see
also id. (“In Williams, for example, we found no infringement because the common elements of
electrified fences, automated tours, dinosaur nurseries, and uniformed workers were
scenes-a-faire that flowed from the concept of a dinosaur zoo.”) (quoting Williams v. Crichton,
84 F.3d 581, 589 (2d Cir. 1996)).
“[N]o bright line rule exists as to what quantum of similarity is permitted before crossing
into the realm of substantial similarity.” Baxter v. MCA, Inc., 812 F.2d 421, 425 (9th Cir.
1987); compare Shaw, 919 F.2d at 1357–58 (finding that plaintiff satisfied the extrinsic test by
showing that both works involved a common theme, parallel plots and sequences of events, and
some similar characters and dialogue), with Benay v. Warner Bros. Ent., 607 F.3d 620, 629 (9th
Cir. 2010) (affirming summary judgment for defendant where “[a] number of similarities
between the works arise out of the fact that both works are based on the same historical events,
take place at the same time and in the same country, and share similar themes”), overruled on
other grounds by Skidmore, 952 F.3d 1051. “Although summary judgment is not highly favored
on questions of substantial similarity in copyright cases, summary judgment is appropriate if the
court can conclude . . . that no reasonable juror could find substantial similarity of ideas and
expression . . . .” Cavalier, 297 F.3d at 822 (internal quotations omitted); see also Shaw, 919
F.2d at 1355 (“We have frequently affirmed summary judgment in favor of copyright defendants
on the issue of substantial similarity.”). “A plaintiff avoids summary judgment by satisfying the
extrinsic test[,] which makes similarity of the works a triable issue of fact. In contrast, a plaintiff
who cannot satisfy the extrinsic test necessarily loses on summary judgment because a jury may
not find substantial similarity without evidence on both the extrinsic and intrinsic tests.” Kouf,
16 F.3d at 1045 (internal citations omitted).
Here, Plaintiffs contend that the Article and Sequel (collectively, “the Works”) are
substantially similar because they have similar plots, sequences of events, pacing, themes,
moods, dialogue, characters, and settings. Defendant contends that the similarities identified by
Plaintiffs are either not similarities at all, or are similarities based on unprotected elements of the
Works. The Court concludes that the Article and Sequel are not substantially similar under the
extrinsic test.
a. Plot, Sequence of Events, and Pacing
The plots, sequences of events, and pacing of the Works are largely dissimilar. Any
similarities are based on unprotected elements, such as general plot ideas, facts, or scènes à faire.


The Article is a non-fiction work that describes real-life F-14 fighter pilots, Alex
(“Yogi”) Hnarakis, and his radar intercept officer, Dave (“Possum”) Cully, who are shot down
easily by their Top Gun instructor in their first aerial combat training exercise. The Article
explains how Yogi and Possum’s fighter squadron fits into the overall structure of the Navy’s
Pacific Fleet, including Top Gun’s location (Naval Air Station Miramar in San Diego,
California), the “officer’s club,” a bar where the Top Gun pilots go for drinks and entertainment.
The Article provides descriptions of F-14 flight maneuvers and the intense nature of flight
training, including the feeling of G-forces on the body and landing on a naval aircraft carrier.
The Article subsequently describes the history and development of the school, its so-called
“caste system,” and the “hotshot” pilots that attended and taught there. At the end of the Article,
Yogi and Possum graduate from Top Gun and their squadron flies out to a naval aircraft carrier
for their next mission.
Top Gun Maverick is a feature film sequel to the 1986 motion picture Top Gun featuring
the fictional pilot from the original film, Pete “Maverick” Mitchell, now a test pilot in his
mid-fifties. The Sequel begins with Maverick disobeying orders and flying his experimental
aircraft at Mach 10. Maverick is then reprimanded and ordered back to the Naval Air Station
North Island to train a group of Top Gun graduates for a dangerous mission to destroy a uranium
enrichment plant in enemy territory. Maverick quarrels with his superiors about his training
methods. When none of the graduates can complete the training course, Maverick takes an
unauthorized flight and proves that the mission can be completed successfully. He is then
ordered to lead the mission himself with a team of his choosing. Maverick’s team includes
Lieutenant Bradley “Rooster” Bradshaw, the son of Maverick’s best friend and former radar
intercept officer, who died in the original film. During the movie it is revealed that Maverick
promised Rooster’s dying mother that he would not let Rooster become a naval aviator. Rooster,
unaware of the promise, resents Maverick for sabotaging his military career and his father’s
death. In the Sequel, Maverick is also reunited with a prior love interest, Penny Benjamin
(“Penny”), and they re-kindle their relationship.
Maverick and Rooster each lead a pair of F/A-18s fighters on the mission. They launch
from an aircraft carrier and destroy the enemy facility, but Maverick is shot down. The pilots are
ordered back to the carrier, but Rooster returns to find Maverick being hunted by an attack
helicopter. After shooting down the helicopter, Rooster is shot down and ejects. Maverick and
Rooster connect on the ground and steal an aging F-14 Tomcat from an enemy base, survive an
aerial dogfight, and are saved by one of the other pilots. Maverick and Rooster return safely to
the carrier despite having no front landing gear. Later, Rooster and Maverick make-up and
Maverick flies off into the sunset with Penny.
Although the plots of both the Article and Sequel feature Top Gun and various graduates
and instructors, Top Gun is a real fighter pilot school and the graduates and instructors

mentioned in the Article are real people (i.e., Yogi and Possum). Those factual elements are not
protected by copyright law. See Shaw, 919 F.2d at 1356. And while both Works involve fighter
pilots training and embarking on missions, those general plot ideas are also not protected. See
Cavalier, 297 F.3d at 823. To the extent Plaintiffs contend that the Works are similar because
they depict or describe fighter pilots landing on an aircraft carrier, being shot down while flying,
and carousing at a bar, those are unprotected facts, familiar stock scenes, or scènes à faire. See
id. Other than similarities based on unprotected elements, the Works’ plots are dissimilar.
The pacing and sequence of events in the Works are also not similar. The Article is
structured in a non-linear fashion, shifting back and forth between describing Yogi and
Possum’s training, their backgrounds, the technical aspects of F-14 fighter jets, etc. The Sequel,
on the other hand, proceeds in a linear fashion and has a consistent pace.
b. Theme and Mood
The themes that Plaintiffs contend are similar between the Works are unprotected stock
themes (i.e., “the bonds that form in military service,” “the sheer love of flying,” and “true grit”)
and/or themes that are not present in either the Article, Sequel, or both (i.e., “the anachronism of
fighter aviation,” “the aviation ‘caste system,’” and “post-war nostalgia that yearns for a simpler
1950s America”). (Docket No. 62 at pp. 7–8.) Additionally, the moods that Plaintiffs identify as
similar between the Works are: (1) not moods at all (i.e., the “contrast [between] the ethereal
beauty of the ‘vast blue dome of sea and sky’ against jarring, unpredictable competitive action,”
and “idyllic flying . . . juxtaposed with gut-wrenching climbs”); (2) not present in the Sequel
(i.e., “Post World War II nostalgia”); and/or (3) general, unprotected moods that flow naturally
from the basic plot premise of a story about fighter pilots training and embarking on missions
(i.e., “the constant threat of death” and “tranquility and violence”). See Shame on You Prods.,
Inc. v. Elizabeth Banks, 120 F. Supp. 3d 1123, 1158 (C.D. Cal. 2015) (“A general mood that
flows naturally from unprotectable basic plot premises is not entitled to protection.”) (internal
quotations omitted), aff’d sub nom. Shame on You Prods., Inc. v. Banks, 690 F. App’x 519 (9th
Cir. 2017).
c. Dialogue and Characters
The dialogue in the Sequel is not similar to that in the Article. As an initial matter, the
dialogue in the Article is unprotected because it is presented as real statements made by actual
people. See Corbello v. Valli, 974 F.3d 965, 984 (9th Cir. 2020) (“The dialogue is held out by
the Work as a historically accurate depiction of a real conversation. The asserted facts do not
become protectable by copyright even if, as Corbello now claims, all or part of the dialogue was
made up.”). Additionally, the only phrase Plaintiffs identify as appearing in both Works is the


phrase “Fight’s on,” which is not entitled to copyright protection. See Narell v. Freeman, 872
F.2d 907, 911 (9th Cir. 1989) (“Ordinary phrases are not entitled to copyright protection.”); see
also Olson v. Nat’l Broad. Co., 855 F.2d 1446, 1450 (9th Cir. 1988) (explaining that “extended
similarity of dialogue” is “needed to support a claim of substantial similarity”). To the extent
there are similarities between the characters in the Works, the characters in the Article are real
people and are therefore not protected by copyright law. See Corbello, 974 F.3d at 976 (“A
character based on a historical figure is not protected for copyright purposes.”).
d. Setting
There are notable differences in the Works’ settings. In the Sequel, the Top Gun
graduates are preparing for their mission at Naval Air Station North Island, whereas in the
Article, Yogi and Possum complete their Top Gun training at Naval Air Station Miramar. The
Sequel is set in the 2020s, and the Article is set in the 1980s and earlier. Although Plaintiffs
contend that the Works’ settings are similar because both take place at a Naval Air Station along
the beach in Southern California, Top Gun was in fact located at Naval Air Station Miramar in
the 1980s, so that aspect of the Article’s setting is not protectable. Other similar settings, such as
a jet’s cockpit, the sky, a classroom, an aircraft carrier, and a bar or “officer’s club” are
unprotectable scènes à faire.
In sum, an objective comparison of Works’ respective plots, sequences of events, pacing,

themes, moods, dialogue, characters, and settings demonstrates that they are not substantially
similar. While the Article and Sequel have some similarities, those similarities are based on
unprotected elements.
e. Selection and Arrangement
Plaintiffs also contend that the “selection and arrangement” of the unprotected elements
in the Article is substantially similar to that of the Sequel.
In addition to filtering out the unprotected elements of the two works and comparing their
plots, themes, settings, etc., the Ninth Circuit “also employ[s] a ‘selection and arrangement’
approach to assess substantial similarity” under the extrinsic test. Hanagami, 85 F.4th at 943.
This approach protects the “particular way in which the artistic elements form a coherent pattern,
synthesis, or design.” Skidmore, 952 F.3d at 1074. Under the selection and arrangement
analysis, “[s]ubstantial similarity can be found in a combination of elements, even if those
elements are individually unprotected.” Swirsky v. Carey, 376 F.3d 841, 848 (9th Cir. 2004);
see Satava v. Lowry, 323 F.3d 805, 811 (9th Cir. 2003) (“[A] combination of unprotectable
elements is eligible for copyright protection only if those elements are numerous enough and


their selection and arrangement original enough that their combination constitutes an original
work of authorship . . . .”). “[A] selection and arrangement copyright is infringed only where the
works share, in substantial amounts, the ‘particular,’ i.e., the ‘same,’ combination of
unprotectable elements.” Skidmore, 952 F.3d at 1075 (quoting Feist Publ’ns, Inc. v. Rural Tel.
Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991)).
The “selection and arrangement” of the Article and Sequel are not substantially similar.
While the works share some unprotected elements, they do not share the same combination of
unprotected elements. For example, the Article includes facts about the technical aspects of
F-14 jet aircraft and the history of Top Gun, which do not appear in the Sequel. Plaintiffs
merely identify “random similarities scattered throughout” the Works, which is insufficient to
establish substantial similarity of “selection and arrangement.” Id. (internal quotations omitted).
Overall, the Court concludes that the Article and Sequel are not substantially similar
under the extrinsic test. Because “no reasonable juror could find substantial similarity of ideas
and expression,” Defendant is entitled to summary judgment on Plaintiffs’ copyright
infringement claim. Cavalier, 297 F.3d at 822. Defendant is also entitled to summary judgment
on Plaintiffs’ declaratory relief claim because it rises and falls with the copyright infringement
claim.3/
2. Breach of Contract
In 1983, Defendant and Yonay executed an Assignment of Rights granting Defendant the
motion picture rights to the Article. The Assignment of Rights provided as follows:
The Purchaser agrees . . . to announce on the film of any motion

picture photoplay that may be produced by it hereunder and
substantially based upon or adapted from [the Article] or any version
or adaptation thereof, substantially incorporating the plot, theme,
characterizations, motive and treatment of [the Article] or any
version or adaptation thereof, that said motion picture photoplay is
based upon or adapted from or suggested by a work written by the
Author . . . .
(Docket No. 62-4 at p. 3, section 7(b).) Put another way, the Assignment of Rights requires
Defendant to credit Yonay on a motion picture if it meets two criteria: (1) it was “produced
3/
Plaintiffs do not dispute that their declaratory relief claim rises and falls with their claim
for copyright infringement, or even address their declaratory relief claim in their summary
judgment briefing.

[]under” the Assignment of Rights; and (2) it is “substantially based upon or adapted from [the
Article] or any version or adaptation thereof.” (Id.)4/ Although Plaintiffs terminated
Defendant’s motion picture rights to the Article on January 24, 2020, Plaintiffs now contend that
Defendant breached the Assignment of Rights by not crediting Yonay in the Sequel.
The Court concludes that Defendant was not required to credit Yonay because the Sequel
was not “produced under” the Assignment of Rights. As an initial matter, the production of the
Sequel continued after Plaintiffs terminated Defendant’s rights, and the Sequel was released in
2022. Additionally, the Sequel could not have been produced under the Assignment of Rights
because it does not infringe on the Articles’ copyright. That is, the Sequel was produced
independently of the rights conveyed to Defendant by the contract.5/
Section 8 of the Assignment of Rights further demonstrates that Defendant was not
required to credit Yonay. It reads:
Nothing contained in this agreement shall be construed to be or

operate in derogation of or prejudicial to any rights, licenses,
privileges or property which the Purchaser may enjoy or to which the
Purchaser may be entitled as a member of the public even if this
agreement were not in existence, and the Purchaser may exercise
such rights, licenses, privileges and property which the Purchaser
4/
Plaintiffs assert that a motion picture does not need to be both “produced [] under” the
Assignment of Rights and “substantially based upon [the Article] or any version or adaptation
thereof” to require that Defendant credit Yonay. Specifically, Plaintiffs contend that the “and”
separating the two phrases is a hendiadys and, therefore, does not have its usual, conjunctive
meaning. The Court disagrees. Rather than construing the “and” as a hendiadys, the Court must
“give effect to the plain and ordinary meaning of the language used by the parties” to the
contract. People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., 107 Cal. App. 4th 516, 524
(2003) (internal quotations omitted).
5/
The parties’ Motions and briefing do not provide sufficient argument concerning whether
the Original Film might qualify as an “adaptation” of the Article. The Court therefore does not
assess the second criteria in the Assignment of Rights or determine if the Sequel is based upon
an adaptation of the Article. However, because Plaintiffs could only prevail on their breach of
contract claim by satisfying both criteria in the clause, the Court’s determination that the Sequel
is not produced under the Assignment of Rights is alone sufficient for Defendants to be entitled
to summary judgment on the breach of contract claim.

may enjoy or to which the Purchaser may be entitled as a member of

the public as though this agreement were not in existence.
(Id. at p. 4, section 8.) Because a member of the public could produce a motion picture like the
Sequel – that does not infringe on the Article’s copyright – without crediting Yonay, the
Assignment of Rights should not be construed to require Defendant to do so. Accordingly,
Defendant did not breach the Assignment of Rights and is entitled to summary judgment on
Plaintiffs’ breach of contract claim.
Conclusion
For all of the foregoing reasons, the Court grants Defendant’s Motion for Summary
Judgment and denies Plaintiffs’ Motion for Summary Judgment. The Court will issue a
Judgment consistent with this Order.
IT IS SO ORDERED.

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Case 2:22-cv-03846-PA-GJS Document 105 Filed 04/05/24 Page 1 of 14 Page ID #:7947

UNITED STATES DISTRICT COURT

Present: The Honorable PERCY ANDERSON, UNITED STATES DISTRICT JUDGE

Proceedings: IN CHAMBERS — COURT ORDER

UNITED STATES DISTRICT COURT

II. Motions to Exclude Expert Reports and Testimony

At the summary judgment stage of a copyright infringement action courts conduct an

CV-90 (10/08) CIVIL MINUTES - GENERAL Page 2 of 14

UNITED STATES DISTRICT COURT

A witness who is qualified as an expert by knowledge, skill,

(a) the expert’s scientific, technical, or other specialized

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and

(d) the expert’s opinion reflects a reliable application of the

Fed. R. Evid. 702.

CV-90 (10/08) CIVIL MINUTES - GENERAL Page 3 of 14

UNITED STATES DISTRICT COURT

A. Plaintiffs’ Expert Henry Bean

UNITED STATES DISTRICT COURT

B. Defendant’s Expert Andrew Craig

Andrew Craig (“Craig”) is a Commanding Officer in the Navy Reserve, as well as a

C. Defendant’s Rebuttal Expert James McDonald

III. Cross-Motions for Summary Judgment

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UNITED STATES DISTRICT COURT

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UNITED STATES DISTRICT COURT

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UNITED STATES DISTRICT COURT

a. Plot, Sequence of Events, and Pacing

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UNITED STATES DISTRICT COURT

UNITED STATES DISTRICT COURT

b. Theme and Mood

c. Dialogue and Characters

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UNITED STATES DISTRICT COURT

In sum, an objective comparison of Works’ respective plots, sequences of events, pacing,

e. Selection and Arrangement

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UNITED STATES DISTRICT COURT

The Purchaser agrees . . . to announce on the film of any motion

UNITED STATES DISTRICT COURT

Nothing contained in this agreement shall be construed to be or

UNITED STATES DISTRICT COURT

may enjoy or to which the Purchaser may be entitled as a member of

CV-90 (10/08) CIVIL MINUTES - GENERAL Page 14 of 14

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