'Top Gun' actor's lawsuit over use of his image in sequel still hangs by a thread

LOS ANGELES (CN) — Barry Tubb, who played Lieutenant Junior Grade Henry “Wolfman” Ruth in the original “Top Gun” movie, still needs to wait to find out whether he can proceed with his lawsuit against Paramount Pictures over the use of a photograph featuring him in the 2022 sequel.

Senior U.S. District Judge George Wu took Paramount’s request to throw out the case under California’s anti-SLAPP law again under submission at a hearing Thursday morning in Los Angeles federal court.

The judge previously said he was inclined to dismiss Tubb’s lawsuit in July of last year, but in a revised tentative decision, he floated the possibility that he may allow the actor to amend his breach-of-contract claim to include the applicable Screen Actors Guild collective bargaining agreement.

This agreement, the judge suggested, could impact his analysis of whether Tubb could show enough of a likelihood that he might prevail on the merits of his breach claim to survive Paramount’s anti-SLAPP motion.

“You’re pretty much dead in the water with your other claims,” Wu told Tubb’s lawyers at the hearing.

The actor’s lawsuit pertains to a behind-the-scene photograph taken during the shooting of the 1986 movie. In the photo, Tom Cruise, Tubb, and other actors pose 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.

To succeed on an anti-SLAPP motion, which is a mechanism to win quick dismissal of meritless lawsuits that impinge on free speech, a defendant has to show that the lawsuit involves protected free speech and a probability that they can prevail on the merits.

At Thursday’s hearing, the judge expressed some concern over how a recent, unpublished Ninth Circuit Court of Appeals ruling in a case involving actor Justin Timberlake interpreted the elements needed to show that a lawsuit pertains to protected free speech in furtherance of a public discussion.

In that ruling, the Ninth Circuit panel concluded that Timberlake’s anti-SLAPP motion failed because he hadn’t shown that the breach-of-contract lawsuit involving a documentary pertained to a public interest rather than to simply his failure to negotiate a backend agreement for a collaborator on the project.

“Urbano doesn’t open up the public interest prong,” Kelli Sager, an attorney for Paramount, said at the hearing, referring to the Ninth Circuit case. “No claim in Urbano pertained to the content of the documentary.”

Tubb’s breach-of-contract claim, on the other hand, was solely based on content, she argued — namely the use of a photograph in the sequel.

Whereas Tubb’s attorney Dennis Postiglione argued that other actors from the original “Top Gun” movie — Meg Ryan and Anthony Edwards — whose image was used in the sequel were compensated, Sager countered that they were paid because the 2022 sequel used flashback footage of them from the original.

“Top Gun: Maverick” was released in 2022 after delays caused by the Covid-19 pandemic that 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.

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