Legal claim over 'resurrecting' Star Wars actor should be thrown out

Film company Tyburn Film Productions is taking legal action against Lunak Heavy Industries (UK) Ltd, which is owned by Disney and produced the film, Rogue One: A Star Wars Story, over its use of Cushing's image.

Cushing, who played imperial commander Grand Moff Tarkin in Star Wars: Episode IV - A New Hope in 1977, died in 1994, but the character was recreated in the 2016 spin-off through special effects after the executors of his estate agreed to the move with Lunak in 2016.

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But Tyburn began legal action against Lunak and Lucasfilm, which produced the original Star Wars films, in 2019, claiming they received "unjust enrichment" from using Cushing's image in Rogue One without its permission.

It claims that it entered an agreement with Cushing in 1993, known as the "letter agreement", that prevented the reproduction of his appearance through special effects without its consent.

Lunak and Lucasfilm oppose the claim, with the High Court previously told that they did not believe permission to recreate Cushing's image was required under the terms of his contract for A New Hope.

Two judges have previously dismissed bids by Lunak and Lucasfilm to have the claim thrown out before a trial, with the companies taking the case to the Court of Appeal on Wednesday.

Edmund Cullen KC, for the companies, said in written submissions that Tyburn's case against them was "legally unsustainable" and "beyond any plausible argument".

He said: "A case such as the present does not involve any enrichment of the appellants at the claimant's expense."

In court, he said: "(Cushing's executors) have not given us anything that the claimant had some contractual entitlement to.

"The claimant was not contractually entitled to the licence we were granted."

Mr Cullen continued that while the 1993 and 2016 agreements both "in a broad sense, concern the right to resurrect Peter Cushing", they were not "co-ordinated".

Rogue One, which was nominated for two Academy Awards, was the highest-grossing production of 2016 in the UK, according to the British Film Institute.

Cushing, who died from cancer aged 81, was recreated in the film by using special effects to alter the appearance of former Holby City actor Guy Henry.

Mr Cullen said that while Lunak and Lucasfilm "did not believe a licence was needed" to reproduce Cushing's image, Lunak entered into an agreement with the executors of his estate that provided it with "any consents that might be required in return for a substantial payment".

The companies first asked a judge to rule in their favour before a trial in 2023, arguing that "the enrichment relied upon by the claimant did not exist", but Judge Francesca Kaye dismissed the bid in December that year.

Deputy High Court judge Tom Mitcheson KC then rejected an appeal against Judge Kaye's decision in September last year.

In his ruling, Judge Mitcheson said that while he was "far from persuaded" that Tyburn would succeed in its claim, the case was not "unarguable" and a "full factual inquiry" was needed.

In written submissions for the hearing on Wednesday, Tom Moody-Stuart KC, for Tyburn, said that the company's rights were "unique and of substantial value" and that "justice requires" a trial of the claim.

He continued that in 1993, the company and Cushing agreed that neither would permit Cushing's "participation in any film or programme where Mr Cushing appears, either in whole or in part" without its consent, which it was "entitled to withhold in its absolute discretion".

Mr Moody-Stuart also said that Cushing agreed that his beneficiaries and executors would be bound by the letter agreement, which gave Tyburn "the right to be the first to 'resurrect' Mr Cushing by way of visual effects".

He said: "The clear intention of the parties was that the respondent would be permitted to 'go first' in 'resurrecting' Mr Cushing, and that Mr Cushing, or the estate, would actively prevent others from doing the same."

Mr Moody-Stuart continued: "If there is any doubt as to what, exactly, the rights granted to the respondent entail, then that militates in favour of allowing the claim to go to trial, where such matters can be determined in the round."

The hearing before the Lady Chief Justice Baroness Carr, Lord Justice Birss and Lord Justice Zacaroli is due to conclude on Wednesday.