Protectable subject matter Archives

Top Gun and all that jazz: “Substantial similarity” in the Ninth Circuit

by Lauren Hong | Jan 15, 2026 | Copyrights

Two January 2026 decisions from the US Court of Appeals for the Ninth Circuit confirm that copyright infringement requires substantial similarity in protectable expression, proven through both extrinsic and intrinsic tests. Yonay v. Paramount Pictures Corp. demonstrates strict application of filtration principles and the constraints of selection-and-arrangement theories at summary judgment. Sedlik v. Von Drachenberg, by contrast, underscores the central and increasingly contested role of the intrinsic test at trial, even when extrinsic similarity evidence is substantial. Yonay v. Paramount Pictures Corp., Case No. 24-2897 (9th Cir. Jan. 2, 2026) (Hurwitz, Miller, Sung, JJ.); Sedlik v. Von Drachenberg, et al., Case No. 24-3367 (9th Cir. Jan. 2, 2026) (Wardlaw, Mendoza Jr., Johnstone, JJ.) (per curiam) (Wardlaw, Johnstone, JJ., concurring).

The extrinsic test examines objective similarities in protectable expression after excluding unprotectable elements while the intrinsic test asks whether an ordinary reasonable observer would perceive substantial similarity in expression without expert guidance.

Yonay v. Paramount Pictures – “Top Guns”

Ehud Yonay authored and owns a copyright in “Top Guns,” a 1983 magazine article about the US Navy Fighter Weapons School, popularly known as “Top Gun.” Yonay sued Paramount Pictures, alleging that its 2022 film Top Gun: Maverick infringed that copyright. The district court granted summary judgment for Paramount, and Yonay appealed.

The Ninth Circuit applied the extrinsic test and rigorously filtered out unprotectable elements, including factual material about the Top Gun program, stock scenes, and high-level themes. The Court concluded that the similarities identified by the plaintiffs existed only at an abstract level and did not involve protectable expression. Although “Top Guns” contains vivid prose and an innovative narrative structure that qualify as protectable expression, none of that expression appeared in the film. The Court explained that even under a selection-and-arrangement theory, courts must filter out unprotectable elements and determine whether the works share a protectable “pattern, synthesis, or design.” After doing so, the Court concluded that the similarities identified by the plaintiffs consisted of unprotectable facts and ideas rather than original expression.

Because the intrinsic test is reserved exclusively for the trier of fact, only the extrinsic test was relevant at the summary judgment stage. The Ninth Circuit also determined that the district court did not abuse its discretion in excluding the plaintiffs’ expert, whose analysis failed to adequately filter out unprotectable elements and therefore relied heavily on similarities in facts and abstract ideas, rendering his opinions unhelpful.

The Ninth Circuit affirmed summary judgment for Paramount, holding that Top Gun: Maverick was not substantially similar to the article “Top Guns.”

Sedlik v. Von Drachenberg, et al. – Miles Davis photograph

Jeffrey Sedlik owns a copyright in his photograph of Miles Davis. Sedlik sued Katherine Von Drachenberg and her tattoo parlor, High Voltage Tattoo, alleging copyright infringement based on Von Drachenberg’s use of the photograph as a reference to create a tattoo depicting Davis’s likeness, the creation of a preliminary sketch, and the posting of related images on social media. After a jury trial, the district court entered judgment in favor [...]

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When Pictures Aren’t Pictures: Real Estate Agent-Generated Floor Plans Are Outside Copyright Infringement Exception for Pictorial Representations

by Christopher M. Bruno | Aug 26, 2021 | Copyrights

Examining whether the Architectural Works Copyright Protection Act enacted in 1990 protects the creation of floor plans, the US Court of Appeals for the Eighth Circuit held that such technical drawings generated for practical, rather than artistic, purposes are not covered by a statutory exception that removes the right to control pictures, paintings, photographs or other pictorial representations of their work from architects. Designworks Homes, Inc. et al. v. Columbia House of Brokers Realty, Inc. et al., Case Nos. 19-3608, 20-1099, -3104, 20-3107 (8th Cir. Aug. 16, 2021) (Arnold, J.)

The facts of the case are relatively simple: In the course of selling designed homes, homebuilders hired real estate agents to generate floor plans for use in their listings. The designers of the homes registered copyrights in the homes themselves, then sued the homebuilders and their real estate agents for copyright infringement.

The issue for the Court was whether 17 U.S.C. § 120(a), a statute designed to limit the scope of copyright protection for architectural works, applied to the floor plans that the real estate agents developed. Section 120(a) excludes from the scope of a copyright in an architectural work “the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work.” The district court held that the floor plans fell within Section 120(a)’s exclusion and, thus, were not covered by the copyright.

The Eighth Circuit disagreed. Employing numerous canons of statutory construction, the Court held that the functional floor plans were neither pictures nor “other pictorial representations” within the meaning of the statute. Drawing from 1990s dictionaries, the Court reasoned that although a floor plan could conceivably be a picture, context showed otherwise. For example, Congress used the phrase “technical drawings” elsewhere in the copyright statute; thus, had Congress intended to exclude them here, it knew how to do so. Moreover, the types of floor plans at issue here were—in the Court’s view—not similar to the other listed categories of items for which copyright protection had been curtailed as the plans did not have any artistic expression.

Practice Note: Not all hope is lost for the homebuilder or developer. Although the Eighth Circuit declined to expressly consider other defenses, it explained that there were others that very readily could apply, including the doctrine of fair use.

“Lightly Sketched” Characters Not Copyrightable

by Cecilia Choy, PhD | Apr 2, 2020 | Copyrights

The US Court of Appeals for the Ninth Circuit affirmed that “lightly sketched anthropomorphized characters representing human emotions” were not copyrightable. Daniels v. Walt Disney Co., Case No. 18-55635 (9th Cir. Mar. 16, 2020) (McKeown, J.).

Denise Daniels created The Moodsters Company. The Moodsters were five named characters, each color-coded to an emotion. The Moodsters Company developed a pitchbook in 2005, a pilot episode for television in 2007, and toys and books of a second generation of The Moodsters by 2013. Daniels and The Moodsters Company also pitched The Moodsters to Disney. In 2010, Disney began developing a movie about five anthropomorphized emotions called Inside Out.

Daniels brought a claim of copyright infringement against Disney. After the district court granted Disney’s motion to dismiss, Daniels appealed.

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