Court of Appeal ‘Strikes Back’ on “Rogue One: A Star Wars Story” unjust enrichment claim involving digital likeness creation

What are unjust enrichment claims?

Put simply, unjust enrichment claims are brought on the basis that a defendant is enriched at a claimant’s expense on an ‘unjust’ basis.  If successful, the defendant is required to return the ‘unjust’ enrichment (or the monetary value of the unjust enrichment) to the claimant.

Unjust enrichment claims frequently involve goods and/or monetary sums belonging to claimants being mistakenly delivered and/or transferred to defendants.  However, they can be much more complex and difficult to determine, particularly when they involve additional parties and/or defendants ‘unjustly’ receive (sometimes indirectly) other benefits from claimants.

The ‘enrichment’ or ‘benefit’ that formed the subject matter of this unjust enrichment claim was the purported right/licence to digitally reproduce the likeness of a (now) deceased actor.

What was this claim about?

Peter Cushing appeared as Grand Moff Tarkin in the original 1977 Star Wars film: “Star Wars: Episode IV – A New Hope”.  Unfortunately, Cushing passed away in 1994.  And in 2016 Lunak Heavy Industries (UK) Ltd obtained permission from his estate to digitally reproduce his likeness in the 2016 “Rogue One: A Star Wars Story” film.

However, Tyburn Film Productions Ltd’s alleged that Lunak and Lucasfilm Ltd LLC had been ‘unjustly enriched’ as a result of Cushing’s digital likeness as Grand Moff Tarkin appearing in “Rogue One: A Star Wars Story” – which was one of the most successful films of 2016 – produced by Lunak and Lucasfilm.

The ‘benefit’ in Tyburn’s unjust enrichment claim was based upon a 1993 letter agreement, between Tyburn, Peter Cushing and his production company (Peter Cushing Productions Limited).  That agreement provided that if the planned film by Tyburn and Cushing was not made (and it wasn’t), neither Cushing nor his production company would permit the reproduction of Cushing’s likeness (including by “Computer Generated Imagery”) without Tyburn’s consent.  Cushing also agreed he would ensure his successors would be bound by those terms.

What happened in this claim?

Tyburn alleged that Lunak and Lucasfilm had been unjustly enriched at its expense, in view of the ‘benefit’ of its purported right/licence to digitally reproduce the likeness of Peter Cushing under the 1993 letter agreement.  At first instance, the Court (noting the complexities of the case) refused to strike out Tyburn’s unjust enrichment claim as it was not certain to fail nor entirely fanciful.  However, Lunak and Lucasfilm appealed that decision.

The Court of Appeal’s focus was on whether Lunak and Lucasfilm had been enriched at Tyburn’s/the claimant’s expense.  It considered “…the various legal requirements indicated by the “at the expense of” question … are designed to ensure that there has been a transfer of value, of a kind which may have been normatively defective” (applying the Supreme Court’s reasoning in Investment Trust Companies v Revenue and Customs Commissioners [2017] UKSC 29) and determined that the claim should be struck out.

When ‘striking back’, the Court of Appeal found no transfer of value occurred in the digital recreation of the deceased actor, as all the rights granted to Lunak and Lucasfilm for the digital recreation of Peter Cusahing’s likeness belonged to his estate, and nothing belonging to Tyburn had been transferred to Lunak and Lucasfilm.  The Court of Appeal also noted that the permission granted by Cushing’s estate to Lunak and Lucasfilm was 23 years after the 1993 letter agreement when it rejected Tyburn’s alternative argument that Lunak and Lucasfilm had been unjustly enriched at Tyburn’s ‘indirect’ expense.

And what does this decision mean in practice?

Whilst unjust enrichment claims can be factually and legally complex, to prove that the other party has been unjustly enriched at your expense there must have been a transfer of value.  So, your claim will only be successful if you are able to sufficiently prove that the benefit the other party has received belongs to you (directly or indirectly) and is of value.

It is also becoming much easier to create the digital likeness of actors (including deceased actors), as technology and AI continue to develop and improve.  Careful consideration is therefore required regarding the risks, and the extent to which, agreements and other contractual terms can successfully aim to protect, permit and/or restrict the use of digital recreation by others (including the digital recreation of the likeness of actors/deceased actors as in this case).

Our Disputes team has significant experience advising businesses of all conceivable sizes, alongside other organisations and high-net worth individuals, within the UK and outside it, including helping them navigate all major arbitral and court fora.  Our expertise includes bringing and defending unjust enrichment claims (often with an international element), within the specialist courts, across a variety of sectors.  If you need help, please get in touch.