Tom Moody-Stuart KC and Joshua Marshall appeared for the Claimant (“Tyburn”) and Jonathan Hill appeared for the Fourth and Fifth Defendants (together, “the Defendants”), in the Defendants’ application to strike out and/or obtain summary judgment on Tyburn’s unjust enrichment claim against them.
The application, and Tyburn’s claims against other defendants in the proceedings, relate to on-screen depictions of the deceased actor Peter Cushing OBE. Before his death in 1994, Mr Cushing and his production company (“PCPL”) entered into an agreement with Tyburn for the production of a television film. At that time Mr Cushing was terminally ill and Tyburn alleges that the agreement gave it exclusive rights to digitally ‘resurrect’ Mr Cushing, in the event that he died during production. Mr Cushing died in 1994, prior to the television film’s completion. In 2016, Mr Cushing’s likeness was reproduced in the Star Wars film ‘Rogue One’. Tyburn subsequently issued a claim against, among others, Mr Cushing’s estate and the makers of the film.
Master Kaye dismissed the Defendants’ application. Although she accepted the Defendants would not have been unjustly enriched if they had acquired the right to resurrect Mr Cushing under a previous agreement which Mr Cushing entered into when the first Star Wars film was produced (the “1976 Agreement”), the Claimant’s alternative construction of the 1976 Agreement was not unarguable or fanciful. This aspect of the claim was therefore unsuitable for summary determination.
In addition, two issues in the claim required consideration of legal principles that are not settled: (i) the proper interpretation of Regulation 31 of the Copyright and Related Rights Regulations 1996; and (ii) unjust enrichment in multi-party situations, or where the defendant has received a benefit indirectly. The Master held that tese issues were better decided on the facts as established at trial, especially as the claims against the other defendants were proceeding in any event.