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  • Writer's pictureRosie Burbidge

What happens to licensed performers' rights when you resurrect an actor using CGI?

Updated: Mar 5



stained glass image of death

The High Court is set to determine an unjust enrichment case concerning the resurrection of the actor Peter Cushing in the film Rogue One, after an application for strike out/summary judgment was rejected.


The case has been brought by Tyburn Film Productions, which argues that it has the right to block or restrict others from resurrecting Cushing pursuant to an agreement made in 1993. The actor died in 1994. The claim is brought against a total of five defendants, including Cushing’s estate.


Cushing appeared in Star Wars (1977) as the Grand Moff Tarkin and was resurrected as the same character in Rogue One (2016). The defendants claim they had the right to resurrect him under a 1976 agreement with his production company and/or that they acquired that right under an agreement in 2016.


The claims include unjust enrichment in respect of exploitation of rights that Tyburn says it was in a position to control.


Broad factual inquiry

The judge, Master Kaye, noted that the broad factual inquiry required in an unjust enrichment claim does not lend itself to summary determination.


She added that the determination in this case requires the court to “grapple with the law in respect of performers' rights and how historic rights are protected through the changes in legislation in 1988 and 1996”, an issue which is not settled.


Two specific areas where she said the law is “not entirely settled” are: (1) competing analysis of Regulation 31 of the Copyright and Related Rights Regulations 1996 and (2) arguments at the edges of the scope of unjust enrichment in multi-party or indirect situations.


The judge said that the claim raised “some interesting and potentially novel questions of law” in respect to IP rights and performers’ rights as well as unjust enrichment and stated:


“It appears to me that this is an archetypal case where the court should exercise restraint before launching into deciding the difficult issues of law and construction. It appears to me that the issues raised are either fact-sensitive, such as the ultimate outcome of any claim for unjust enrichment, or uncertain or in an area of developing or developed law.”

Key arguments

The judge went on to review the key points of the parties’ arguments, including: who owned the rights to resurrect Cushing as Grand Moff Tarkin in Rogue One, what rights accrued to Star Wars Productions under the 1976 agreement, the impact of advances such as CGI, the scope of the rights granted in 1976 and whether any enrichment was actually unjust.


Having done so, she rejected the argument that the claim had no plausible basis or was entirely fanciful and said that a fuller investigation of the facts is necessary.

 

What does this mean for performers' rights?

This case addresses a topic that is not settled and, some would argue, ripe for review. Indeed, Lord Justice Arnold discussed the issue of performers’ rights in his eighth annual lecture at Westminster Law School in February 2024, and called for legislative reform.


It will be fascinating to see whether this case ultimately resolves some of these complex issues.


To find out more about the issues raised in this blog contact Rosie Burbidge, Intellectual Property Partner at Gunnercooke LLP in London - rosie.burbidge@gunnercooke.com


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