A long time ago (late 2023) in a courtroom far far away (Central London), a case began concerning the use of likeness of the actor Peter Cushing in the 2016 film Rogue One. This films was made 22 years after his death. We wrote about the first decision in this perfomers' rights saga in early 2024. Now it is time for the sequel.
Whose performers' rights?
By way of reminder, Rogue One's producer used special effects to recreate Mr Cushing as the character Grand Moff Tarkin. In return for using his likeness, they agreed to pay a fee to Cushing’s estate.
However, in a shocking twist, a third party, Tyburn Film Productions, claims that shortly before he died Mr Cushing signed an agreement not to grant anyone permission to reproduce his appearance without Tyburn’s express consent.
Tyburn subsequently brought claims against the producers including regarding unjust enrichment. The film’s producers applied for strike out/summary judgment.
On 8 December 2023, Master Kaye denied that application.
Decision upheld
Deputy High Court Judge Tom Mitcheson KC has now rejected an appeal against that decision.
He summarised the appeal as being concerned with whether as a point of law it was maintainable that any enrichment was at the expense of the claimant (Tyburn) rather than, for example, at the expense of the estate:
“The [producers]’ overarching point was that unjust enrichment could never arise in circumstances where B [i.e. Cushing] contracts with A [Tyburn] not to do something, but B [Cushing's estate] then deals with C [the producers] in breach of the contract with A [Tyburn]. The [producers] submit that, instead, the Estate’s activities caused a contractual loss to A, [Tyburn], and conferred a separate benefit, in the form of a licence, upon C, the [producers]. The remedy of unjust enrichment could not rescue [Tyburn] in these circumstances.”
Having reviewed the decision and relevant case law, Mr Mitcheson KC said that although he was “far from persuaded” that Tyburn would succeed in its claim for unjust enrichment, he was not persuaded that the case was unarguable to the standard required to give summary judgment or to strike it out.
He said:
“In an area of developing law it is very difficult to decide where the boundaries might lie in the absence of a full factual enquiry. In addition, there is a limit to the extent to which one can try to work out the boundaries by comparing facts with decided cases where the facts are so different.”
He acknowledged that there is no prior analogous case where a claim for unjust enrichment succeeded, but said there was a lack of guidance from the Supreme Court and the doctrine is not yet settled.
Therefore, it would be easier to decide the issue of law in the light of fully argued facts.
He also rejected an appeal on a second point, concerning the defence of bona fide purchaser for value without notice.
What does this mean?
This promises to be an interesting case when it finally goes to trial! As well as the complex issues arising from having three parties, as the judgment identified, it may also address questions concerning performers’ rights in the age of special effects and CGI.
We will provide further updates in due course.
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