The Briefing by Weintraub Tobin Top Gun Cleared for Takeoff: The Ninth Circuit Affirms Paramount’s Copyright Win
Jan 23, 2026
A recent Ninth Circuit ruling in the long Top Gun dispute and its impact on copyright law. How courts separate protectable expression from unprotectable facts and genre conventions. The two-part substantial similarity test and why nonfiction gets thinner protection. Practical takeaways for adapting real events, biopics, and projects inspired by true stories.
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Facts Alone Don’t Prove Infringement
- The Ninth Circuit affirmed Paramount's win, stressing that similarity to facts alone isn't enough for copyright infringement.
- Courts require copying of original expression, not shared subject matter or genre conventions.
Two-Step Substantial Similarity Test
- Courts use the extrinsic and intrinsic tests to assess substantial similarity, filtering out unprotectable elements first.
- A plaintiff must win the extrinsic analysis before the intrinsic (jury) test applies.
Thinner Protection For Nonfiction
- Nonfiction works receive narrower copyright protection because facts and historical events remain public.
- The court filtered out factual, historical, and genre-driven elements as unprotectable expression.
The Ninth Circuit kicked off 2026 with a major copyright decision in the long-running Top Gun dispute, affirming summary judgment for Paramount in the lawsuit over Top Gun: Maverick. In this episode of The Briefing, Weintraub Tobin shareholders