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A 1970s B-movie company has lost a £250,000 court battle with Star Wars producers over the special effects “resurrection” of horror legend Peter Cushing in Rogue One.
Mr Cushing OBE, who died of cancer in 1994 aged 81, became a national treasure thanks to his many roles in Hammer horror films between the 1950s and 1970s.
He also starred as Grand Moff Tarkin, the Imperial officer in charge of the Death Star, in the first Star Wars film in 1977.
His role as that character was later “recast” by being “revived” using special effects for 2016’s $1 billion-grossing Star Wars spin-off Rogue One, 20 years after his death.
But Lucasfilm Ltd. and Lunak Heavy Industries (UK) Ltd., the producers of Disney-owned Rogue One, were later sued by a British film company over claims that it had the rights to bring the horror star back to the screen through technology after his death.
London-based Tyburn Film Productions Ltd., Hammer’s rival, which produced a series of low-budget horror films in the 1970s, said it had signed a contract with Mr. Cushing in 1993 – a year before his death – that gave it the right “without any limitation” to give or withhold consent for his image to be “reproduced by special effects techniques.”
The company, whose directors are USA-based executive John Golder and British-based accountant Bernard Thomas, sued two Disney-owned companies claiming damages for “undue enrichment” at its expense.
The company valued its losses at more than £250,000, but Disney companies denied the claim and argued they had the rights to the images used in Mr Cushing’s 2016 SFX “resurrection” because they came from the original 1977 Star Wars film.
The horror film company’s claim has now been dismissed after a four-year battle, after Britain’s most senior judge, Lady Carr, ruled that Tyburn suffered no harm by using Mr Cushing’s image in Wicked One.
The court heard Tyburn brought his claim in 2021, after which the Disney companies fought through a series of court hearings over the next four years to dismiss the B-movie makers’ claim.
But he faced a fight when two different judges said the issues were too complex and would require a full hearing.
At the 2022 hearing of barristers for Lucasfilm and Lunk, Jonathan Hill explained to Judge Francesca Kaye in the High Court that Tyburn had signed a contract with Mr Cushing in 1993, “in respect of an expected appearance by Mr Cushing in a television film, tentatively entitled Heritage of Horror” which was never made.
Part of that contract sought to “provide for the fact that at the time…Mr. Cushing was terminally ill and there was therefore doubt as to whether or not he would be able to contribute to the TV movie”.
This clause gave Tyburn the right to veto reproducing the SFX image of Mr. Cushing in the event the planned TV movie was not made, leading Tyburn to sue the two Disney companies for “unjust enrichment”.
The court heard the executors of Mr Cushing’s estate recorded that the estate had received £28,500 after tax for allowing Disney to use the horror icon’s image.
Tom Moody-Stuart Casey, for Tyburn, told the judge: “My clients were firstly given a contractual right to use or withhold consent to Mr Cushing’s performance rights being reproduced by technical means.
“Either direct or indirect benefits have been taken from us.
“To be fair, Lucasfilm needed two consents – one from the estate and one from Tyburn.”
However, defending the claim, Mr Hill told the judge that the estate’s consent, while obtained, was not necessary because the images used to create the SFX Peter Cushing used came from the original Star Wars film.
He said, “Mr. Cushing has authorized Star Wars Productions to make copies of the recording of his performance.”
“Therefore the rights with respect to those copies vest in Star Wars Productions.”
In the production of Rogue One, the Disney companies “apparently worked on their own copies of recordings of Mr. Cushing’s performance,” he said.
He said that the Disney companies did not need any permission from Tyburn because permission was already granted under their agreement with Mr. Cushing for his appearance in Star Wars in 1977, adding: “Even if there was any promotion, it was not at Tyburn’s expense”.
Lady Carr agreed in her ruling today, saying that although Tyburn said the Disney companies were directly enriched at his expense, there was no legal basis for this because it was impossible to identify anything related to Tyburn that had been transferred to Disney.
He said the rights granted by the properties to the Disney companies in the 2016 agreement were not the same as the rights granted by Mr. Cushing to Tyburn under the 2016 agreement.
Lady Carr, sitting with Sir Colin Birss and Lord Justice Zakroll, said:
“When Tyburn learned that Lucasfilm was set to make Rogue One and intended to recast Mr. Cushing in the role of Grand Moff Tarkin, he wrote to Lucasfilm, claiming that he was not allowed to do so without Tyburn’s consent. Tyburn argued in that letter that he had suffered substantial damages as a result of Lucasfilm’s actions/intentions.
“The damages were said to include approximately £250,000 spent on TVM, as well as the consequential loss of being deprived of the commercial benefit of being “out of the gate” with a film starring Mr Cushing after his death.
“It sought to reach an accommodation with Lucasfilm. No such accommodation was found. Wicked One was completed and was a major commercial success.
“For the purposes of this appeal, we need to assume that Tyburn will be able to establish at trial that the Appellants, because of the 2016 agreement, were enriched, that the enrichment was unjust and that there is no defense available to them.
“Therefore, the only issue is whether the appellants were enriched at the expense of Tyburn.
“Wherever the line is to be drawn, Tyburn’s claim is clearly on the wrong side.
The judge concluded, “Accordingly, we allow this appeal and dismiss Tyburn’s claim against the appellants.”