The digital “resurrection” of Peter Cushing, known for playing Grand Moff Tarkin in the Star Wars franchise and a stalwart of the horror genre, has been a key focus of the film and television industry in recent months.

In Tyburn Film Productions Limited v Broughton & Others [2023] EWHC 3247 (Ch), Master Kaye refused to grant (some of) the Defendants’ application for strike out (or summary judgment in the alternative) of the Claimant’s claim in a case that, if and when it goes to trial, will be of enormous interest to performers and other members of the creative industries. Though the Master’s opinion is quite closely focused on the viability of the application itself and the potential breaches of contract for which the claim was brought, the underlying reason for the proceedings – the creation of a computer-generated replica of Peter Cushing following his death in 1994 – has been central to the current issues around the use of AI in the entertainment industry.

Background

This claim concerns the right to digitally resurrect (and the right to block or restrict the resurrection) of the actor Peter Cushing by technological means. Tyburn Film Productions Limited (“Tyburn”), the Claimant, alleges breaches of a contract made between it and Peter Cushing’s production company, Peter Cushing Productions Limited (“PCPL”). Tyburn says that it has had the sole right to use technological measures to “resurrect” Peter Cushing under an agreement made in 1993, in relation to a TV movie during a period where Mr Cushing was already in ill health, which also gave Tyburn a blocking right against others doing the same (the “1993 Agreement”). 

The 1993 Agreement contains a clause under which PCPL and Mr Cushing “warrant, undertake and agree that neither of them will permit Mr Cushing's participation in any film or programme whereby Mr Cushing appears either in whole or in part other than in person, in or out of any character, by way of Mr Cushing being reproduced by all or any combination of the processes or techniques referred to in subparagraphs (1) through (11) of paragraph (e) without [Tyburn’s] express prior written consent, which consent we may grant or withhold at our sole and absolute discretion." The processes and techniques referred to included all forms of special effects, computer-generated imagery and any successors/replacements of those; therefore, AI-generated content is likely caught.

In 2016, 22 years after Mr Cushing’s death, he was digitally “resurrected” from recordings of his performance as Grand Moff Tarkin in the original Star Wars trilogy and subsequently appeared in the Star Wars: Rogue One film. Tyburn claims that this was done in breach of the 1993 Agreement and has unjustly enriched others as Tyburn had never given their consent for Mr Cushing’s resurrection. 

There are five Defendants in the ongoing action:

• The First and Second Defendants (the Broughtons), who are the executors of Mr Cushing’s estate, are alleged to have breached the 1993 Agreement by consenting to Mr Cushing’s resurrection in Rogue One without seeking Tyburn’s consent; 
• The Third Defendant (Associated International Management LLP), who was Mr Cushing’s (and is subsequently his estate’s) theatrical agent, is alleged to have induced the estate’s breach of contract; and
• The Fourth and Fifth Defendant (Lunak Heavy Industries (UK) Ltd (“Lunak”) and Lucasfilm Ltd LLC (“Lucasfilm”)), who are alleged to have been unjustly enriched in respect of the exploitation of rights which they did not hold.

The application at hand was only made by the Fourth and Fifth Defendants; the breach/inducement claims against the First, Second and Third Defendants would continue whether or not the strike out/summary judgment application was successful.

Lunak and Lucasfilm sought strike out and/or summary judgment on the basis that an agreement had been made between PCPL and Star Wars Productions Ltd way back in 1976 when the original Star Wars movies were being made (the “1976 Agreement”), which they argued gave them a prior right to use content owned by Star Wars Productions Limited for the purposes of digitally recreating Peter Cushing. Alternatively, they also contended that they had acquired the right under another agreement, made in 2016, between the First and Second Defendants and the Fourth Defendant, (the “2016 Agreement”), specifically made in relation to the digital recreation of Mr Cushing in Rogue One.

What did the Master decide?

For a strike out application to succeed under Civil Procedure Rule 3.4(2)(a), a statement of case must disclose no reasonable grounds for bringing the claim. It requires the judge to analyse the statement of case without reference to evidence and an assumption of truth in terms of the facts. If there is a dispute as to the facts, the Court has to be absolutely certain the claim is bound to fail. For summary judgment, on the other hand, the Court does have to regard the claim as a whole and decide whether there is some compelling reason why the case should be allowed to go to trial.

There are complex issues of law in the case; it required Master Kaye to consider performers’ rights and how legislation changed to protect these and, further, how rights of performers were (or were not) dealt with before they were explicitly protected in law. The Master acknowledged that there were points of law which have not been settled and competing authorities. There are also difficult questions of law regarding unjust enrichment, which Master Kaye even considered to be potentially entirely new points to be grappled with. 

Though she stated her decision not to grant the application early on in her judgment, the Master did give some commentary on the matters at hand. Though the main legal issues in this case relate to the construction of certain contracts and whether they have been breached, some of the points made will be of particular interest for those watching the ongoing disputes regarding AI and performers:

• Some of the terms in the 1976 Agreement were based on the Performers’ Protection Acts, the predecessors to the performers’ rights now found in the Copyright, Designs and Patents Act 1988. Counsel for the Defendants submitted that the wording in that contract was expansive enough to cover the rights required to be able to digitally resurrect Mr Cushing. The Master had to contend with the possibility that, on the one hand, the 1976 Agreement could and/or should be restricted to the “four walls” of the agreement, but on the other hand, the lack of consideration of AI technology and the context in which the agreement had been made may need to be examined to see if the rights in that agreement (or indeed the 1993 Agreement) actually are the rights required in this situation.
• Master Kaye was unable to conclude the precise scope of Regulation 31 of the Copyright and Related Rights Regulations 1996, as there was some room to manoeuvre in terms of its interpretation with relation to pre-authorisation of copying of a performance. She noted there were competing texts discussing the potential limitation of the Regulation and it was not something which could be decided summarily.

The Master also discussed the unjust enrichment claim; though we aren’t going to dive into the intricacies of a multi-party indirect unjust enrichment claim in this article (as indeed the Master did not), many will watch with interest the outcome of this part of the case. She recognised the difficulty with which these cases are decided and emphasised how fact-specific they are. The lack of factual inquiry Master Kaye could undertake was key in her decision to not grant the application.

What does this mean for performers?

The short answer is, from a purely legal perspective, watch this space. Until (and if) we see an outcome at trial in these proceedings, the questions about consents given in relation to copying performances, how they might be treated contractually and, particularly, the difficulties which come with a deceased performer remain unanswered. 

The answers to these could however have a major impact on the use of AI in the entertainment industry: actors and other performers may agree, or have already agreed, to assign rights in certain performances which could then be digitally replicated and altered long after they’ve died. How those contracts and consents were affected by the changes in legislation over the last thirty years will become entirely relevant – but how does this match up to technology that was never in contemplation at the time? 

The matter of Mr Cushing’s digital resurrection could well be a case that significantly changes the approach of studios and other producers when contracting their performers. It may lead to studios and other producers moving to use digital replicas they have the rights to over hiring actors to record new performances. As we have seen elsewhere in the videogames industry, performers are becoming increasingly concerned that AI-generated performances will erode creativity and the need for acting talent. We’ve seen progress on the other side of the pond when it comes to AI, but how this is going to play out in the UK remains to be seen. Perhaps unsurprisingly, this is leading to calls for legislative reform of the laws governing performers’ rights from some quarters in the UK.