LOS ANGELES (CN) — An actor who appeared in the original "Top Gun" movie looks unlikely to prevail in his lawsuit to force Paramount Pictures to compensate him for the use of his image in the 2022 sequel "Top Gun: Maverick."
U.S. District Judge George Wu didn't issue a final ruling at a hearing Monday on Paramount's request to throw out Barry Tubb's lawsuit, but the judge's tentative decision was that he's very likely to do so.
Tubb played Lieutenant Junior Grade Henry “Wolfman” Ruth in the 1986 blockbuster movie that helped launch the career of Tom Cruise. During the shooting of the movie, cast members posed behind-the-scenes with a group of Navy pilots who were assisting in the production.
A cropped version of that photo, showing a young Cruise, Tubb, and two of the other actors, was used in the 2022 sequel, where two young pilots are examining it during a 24-second scene.
"Take a look at this. The man, the legend," one of them observes.
This, Wu joked at the hearing, was probably not a reference to Tubb's Wolfman character who, wearing a cowboy hat, is standing behind Cruise.
Paramount is asking the judge to dismiss Tubb's lawsuit under California's anti-SLAPP statute, which allows quick dismissal of meritless claims that impinge First Amendment rights.
"He got paid for his services," Kelli Sager, one of Paramount's attorney said at the hearing in downtown Los Angeles. "We haven't seen one provision of his contract that was breached."
Dennis Postiglione, one of Tubb's lawyers, argued that the contract he signed 37 years ago only pertained to the actor's work on the original "Top Gun" movie.
The judge, in his tentative ruling, agreed with Paramount that the plain language Tubb's contract gives the movie studio all rights to the Wolfman character and likeness, including a "un-cabined" right to exploit that role or character by using his likeness.
"Plaintiff has no reasonable probability of prevailing on his two right-of-publicity claims or his breach of contract claims," the judge said.
Wu asked both sides to provide him with additional information before making a final ruling. The judge was particularly interested in whether Meg Ryan and Anthony Edwards, who in the sequel appeared in flashback scenes from the original movie, were compensated and whether other actors in the behind-the-scenes photo got money for the use of their image.
He also asked to see a copy of 1985 Screen Actors Guild agreement that covered Tubb and Paramount's work relationship at the time in addition to his contract for the movie part.
"Top Gun: Maverick" was released in 2022 after delays caused by the Covid-19 pandemic that had kept movie theaters closed. It grossed about $1.5 billion worldwide, making it the most successful movie in Cruise's career in terms of box-office revenue.
In 2022, the widow and son of the author of the original 1983 "Top Guns" magazine article, which was the basis for the 1986 movie, sued Paramount Pictures, claiming the studio's sequel, "Top Gun: Maverick," infringes on their copyright.
U.S. District Judge Percy Anderson in in April granted Paramount Pictures' request for summary judgment on the family's infringement and breach of contract claims.
According to the judge, there are no substantial similarities entitled to copyright protection between the magazine article and the movie, in which Tom Cruise reprises his role as Navy pilot "Maverick" from the 1986 blockbuster.
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