Maverick law suit or legitimate claim of copyright infringement?

"Top Gun: Maverick", the hotly anticipated sequel to the 1986 blockbuster, "Top Gun", premiered in London last week. While Tom Cruise may have achieved his biggest opening weekend at the US box office, behind the scenes a complaint has been filed against the movie's film studio, Paramount Pictures, at Los Angeles' federal court for an alleged breach of copyright in the creation of the sequel.

The complaint was filed by the widow and son of Ehud Yonay – the author of the original story "Top Guns", the rights to which were acquired by Paramount to make the first of the films.

The complainers argue that Paramount did not have the requisite rights to make the sequel because of a provision in copyright law which allows authors (and if deceased, their descendants) to reclaim their copyright, normally after a period of thirty five years.

The complaint sets out that Paramount failed to re-acquire the rights before the sequel's release. The complainers are seeking unspecified damages for losses incurred as a result of Paramount's omission. We await further developments with interest.

While this litigation may unfold in the sunnier and more glamorous climes of Hollywood, copyright claims are something UK businesses and individuals alike should be aware of.

What is copyright?

Copyright is a legal protection which prevents others from using the creator's work. In the UK it is governed by the Copyrights, Designs and Patents Act 1988 and automatically afforded to creators of various types of creative works including literature, web content, music and film. Work protected by copyright is usually marked with the copyright symbol – ©.

It is possible to license and sell your copyright – as Ehud Yonay did with Top Guns.

What remedies do I have if I think my copyright has been infringed? 

In the event a party is using your work unlawfully (i.e. without the requisite licence), there are two primary legal remedies available:

Interdict

You may apply to the court for an interdict (injunction). An interdict is an order which compels a party to stop doing something. Interim interdict can be sought as part of the application which, if obtained, would immediately prevent any further infringement. In Scotland, it is possible for interim interdict to be obtained without the infringing party having an opportunity to defend their position, if they do not have a caveat in place. See our blog here for more information on caveats.

If the party breaches this order, Scottish courts have been known to take a tough approach where the circumstances merit it. In the 2018 case of Sky v McGregor Clachar, the judge handed down a sentence of fourteen days in prison to a pub owner who continued to show Sky football matches in the premises despite an order to the contrary. See our blog here for more information.

Damages

Where you have suffered loss as a result of copyright infringement, an alternative remedy is to seek damages as part of the court proceedings. To calculate the value of damages, the court will likely reference the average monetary value of a licence of the works in question.

In circumstances where the court considers it is just to do so, or where there has been "flagrant infringement", the Copyright, Designs and Patent Act 1988 provides that the court may award additional damages.

Get in touch

If you have any queries relating to copyright infringement, or to protection of IP rights in general, please get in touch with a member of the IP, Technology and Data Team or your usual contact at Brodies.