Help us UK Supreme Court, you’re our only hope (for digital replicas)

[Georgia Jenkins]

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Help us UK Supreme Court, you’re our only hope (for digital replicas)

 Georgia Jenkins Saturday, April 25, 2026 - artistic data, breach of contract, digital replicas, Georgia Jenkins, law of passing off, performance rights, Unjust enrichment

Frames from Star Wars: A New Hope and Rogue One: A Star Wars Story - Lucasfilm

Who would have thought that Princess Leia’s ‘holographic’ plea in Star Wars: Episode IV – A New Hope would set the scene for an epic legal argument. Very quietly, over the last three years, a storm has been brewing over the interpretation of unjust enrichment in the UK. Culminating in an application for appeal to the Supreme Court, reported in February, an argument has been made that unjust enrichment extends to a commercial right ‘akin to property’ to digitally create a performer’s likeness.

 

Facts

The case relates to an agreement between Peter Cushing, a.k.a. the Death Star Commander Grand Moff Tarkin, his production company, and Tyburn Film Productions in 1993 that anticipated the scenario where Cushing would be unable to complete the performance due to illness for a planned TV film. Although the film was never made, Cushing’s likeness reappeared as Tarkin in the 2016 film Rogue One, despite his death in 1994. For this appearance, Cushing’s likeness was mapped onto the performance of actor Guy Henry. Interestingly, recreating the CGI legs and feet was difficult as reportedly he wore slippers during the filming of A New Hope. Following authorisation from Cushing’s Estate in 2016, post-production went through ‘hours and hours of old footage from the horror movies to recreate his legs and feet to produce realistic movements’.

Tyburn maintains that this authorisation breached their agreement with Cushing and his production company, specifically the clause that allowed Tyburn to use a range of methods to complete the performance. These included doubles, stand-ins, stunt performers, other actors, prosthetic and/or other forms of make-up, extracts from other films, back and front projection, special effects, CGI, and other processes or techniques created in the future to supplement. If the TV film was not completed, Cushing and his production company also agreed 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 character, by way of Mr Cushing being reproduced by all or any combination of the process and techniques [listed above] […] without our express prior written consent – which consent we may grant or withhold at our sole and absolute discretion.

Cushing ensured that his estate would be bound that clause.

Although the TV film was never produced, Tyburn contends that Lunak and Lucasfilm recreated Tarkin without their consent, commencing a claim for unjust enrichment. This requires Lunak and Lucasfilm to be enriched or received a benefit that is unjust at the expense of Tyburn (ITC). In response, Lunak and Lucasfilm sought summary judgement and argued that Tyburn’s claim is not sufficiently arguable, a position rejected by the High Court and confirmed by the Court of Appeal.

A commercial right to resurrect a performer that eclipses their Estate?

By the time the case reached the Court of Appeal, the sole issue was whether Lunak and Lucasfilm were enriched at the expense of Tyburn. Tyburn argued such enrichment arose from the Estate’s agreement allowing the reproduction of Cushing’s likeness and its commercial exploitation, directly and/or indirectly. Regarding the former, Tyburn argued that the value of the commercial right to resurrect Cushing was connected to IP rights (e.g. performers’ rights and passing off) and their potential exploitation. In Tyburn’s view, this is akin to a property right, falling within unjust enrichment (ITC). The Estate’s wrongful exercise of these rights thus deprived Tyburn of that right, taking all the commercial benefit of being ‘first out of the gate’ with a film starring Cushing after his death. Sinister, indeed.

The Court of Appeal held that there is no basis for direct unjust enrichment as it is impossible to identify anything that belonged to Tyburn that was transferred to Lunak and Lucasfilm. The related IP rights Tyburn sought to attach to their commercial veto right belong, in the court’s view, to the Estate who did not exercise Tyburn’s rights. At most, they breached the 1993 Agreement. While Tyburn argued that this was a ‘right of primacy’, the court disagreed, finding that this requires a closer relationship between the film not being made and Cushing’s illness or demise. Even if interpreted broadly, this characterisation does not alter the legal nature of the rights granted under the agreement. The court stated in obiter that Tyburn should have claimed that Lunak and Lucasfilm induced the Estate to breach the contract. However, this would likely have required meeting a higher knowledge threshold for liability.

Tyburn also claimed indirect unjust enrichment and argued that the benefit was transferred ‘through a series of co-ordinated transactions’ establishing a ‘clear causal connection’ between the 1993 agreement rights and those exploited by the Estate. Given the 23-year gap between the agreements and the unlikelihood that the parties had the earlier agreement in mind when the Estate authorised the use of Cushing’s likeness, the court found that these agreements are not coordinated to effect a transfer of value. Returning to ITC, the court emphasised that separate transactions are only relevant when value can be identified at the expense of the claimant. In the court’s view, there was nothing of relevance in the 1993 agreement.

Lastly, Tyburn’s argument that was an ‘interceptive subtraction’ - a form of unjust enrichment where a defendant obtains a benefit from a third party, intended for a claimant - was also rejected. Again, the court reiterated that Tyburn failed to identify what was transferred particularly as the Estate owned the related IP rights and lawfully exercised them.

So ,even though the court acknowledged that three-party cases and indirect benefit cases are ‘some of the most difficult and fact-sensitive cases of unjust enrichment’, it allowed the appeal and struck out Tyburn’s claim.

‘If you’re feeling sinister’…

Contemplating commercial veto resurrection rights may feel sinister. But, in this Kat’s view, this case is helpful for the UK digital replica debate. Following the UK government identifying them as a priority area, there is a clear need to reconcile a variety of conflicting interests and competing IP rights. Similarly to a pending US case reconciling publicity and copyright interests (IPKat here), the uncertain road ahead requires a framework that captures the value of ‘artistic data’, its unauthorised transfer and possible commercial exploitation. The attempt to ground this in unjust enrichment is certainly admirable; whatever the outcome, this Kat hopes that it nudges the current discussion towards a more inclusive understanding of value.

Who knows, perhaps a more Chewie-driven approach is what we need...

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