Lunak Heavy Industries (UK) Ltd & Anor v Tyburn Film Productions Ltd [2024] EWHC 2312 (Ch)
Background
Tyburn Film Productions Limited ("Tyburn") is bringing a claim for unjust enrichment against Lunak Heavy Industries (UK) Ltd ("Lunak"), which is owned by Disney and produced the film, 'Rogue One: A Star Wars Story' in 2016.
The dispute relates to the alleged unauthorised use of the likeness of British actor Peter Cushing, who played admiral 'Grand Moff Tarkin' in Star Wars: Episode IV - A New Hope, in 1977. Peter Cushing died in 1994, however, the character was resurrected in the 2016 film through special effects.
Tyburn claims that it entered an agreement with Mr Cushing in 1993, shortly before he died, that prevented the reproduction of his appearance through special effects without its specific consent.
The legal claim
Tyburn brought a claim for 'unjust enrichment' at Court against Lunak and Lucasfilm Ltd LLC.
Lunak (and Lucasfilm), considered that there was no unjust enrichment and that the claim was not even 'reasonably arguable'. They applied for a 'strike out' or summary judgment of the claim brought by Tyburn.
The test under Part 24 of the Civil Procedure Rules for the Court to consider for granting summary judgment is whether a party has: "no real prospect of succeeding on the claim, defence or issue and there is no other compelling reason why the case or issue should be disposed of at a trial".
Pursuant to Part 3 of the Civil Procedure Rules, a claim can be struck out (i.e. brought to an immediate end) where the statement of case discloses "no reasonable grounds" for bringing a claim.
The Court rejected the application for strike out, citing the case of Barrett v Enfield London Borough Council [2001] 2 AC 550: "The correct approach is not in doubt: the court must be certain that the claim is bound to fail. Unless it is certain, the case is inappropriate for striking out".
Appeal
Lunak appealed that decision, seeking summary judgment/strike out of the claims in the High Court.
The High Court judge, in determining the appeal, noted that he was "far from persuaded that the Claimant will succeed in its claim for unjust enrichment" and that "it is correct that the Claimant has not managed to identify any prior case analogous to its own where a claim for unjust enrichment succeeded". Despite that finding, the Judge did not allow the appeal; the case will proceed to a full trial in due course.
The Judge considered that the doctrine of unjust enrichment is "not yet settled", with no "definitive guidance" from the Supreme Court and that the Court should generally not "attempt to determine summary judgment applications in areas of developing law".
Analysis
Courts will be reluctant to strike out a claim or give summary judgment where it considers that the legal doctrine in question is not settled through authoritative judgments in case law, or where there is also some, albeit perhaps modest, expectation that disclosure might later reveal some relevant documents.
Advances in AI tools are making it easier to recreate a deceased actor's likeness and preserve treasured characters in highly profitable film franchises. With iconic actors from the 'Star Wars' franchise such as James Earl Jones (the voice of Darth Vader) recently passing away and the likeness of such actors continuing to be sought by film studios and video game producers, disputes over the use of an actor's likeness are expected to increase in the absence of a clear legislative framework for regulating this area at present.