Lucasfilm wins court fight with 1970’s horror B-movie makers over star’s ‘resurrection’ in Rogue One
In the 1970s, a B-movie company lost a £250,000 court fight with the producers of Star Wars over horror legend Peter Cushing’s special effects “resurrection” in Rogue One.
Mr Cushing OBE, who died of cancer in 1994 aged 81, became a national treasure for his numerous roles in Hammer horror films between the 1950s and 1970s.
He also appeared in the first Star Wars film in 1977 as Grand Moff Tarkin, the imperial officer in charge of the Death Star.
His role as this character was “re-created” 20 years after his death by being “resurrected” using special effects for 2016’s $1 billion-grossing Star Wars spinoff Rogue One.
However, Disney-owned Rogue One producers LucasFilm Ltd and Lunak Heavy Industries (UK) Ltd were later sued over claims by a British film company that it had rights to bring the horror star back to life on the big screen using technology after his death.
London-based Tyburn Film Productions Ltd, a competitor to Hammer that produced a series of low-budget horror films in the 1970s, said it signed a contract with Mr Cushing in 1993 – a year before his death – giving it the right “without restriction” to approve or withhold approval for his image to be “reproduced by special effects techniques”.
The company, whose directors are US-based executive John Golder and British accountant Bernard Thomas, filed a lawsuit against two companies owned by Disney, seeking damages for “unjust enrichment” at its own expense.
The company valued its losses at more than £250,000, but the Disney companies disputed the claim and argued that they owned the rights to the images they used in Mr Cushing’s 2016 SFX “resurrection” film because they came from the original 1977 Star Wars film.
The horror film company had its claim refuted after a four-year battle after Britain’s most senior judge, Lady Carr, ruled that Tyburn did not lose because of Mr Cushing’s image used in Rogue One.
The court heard Tyburn launched his claim in 2021, after which the Disney companies fought a series of court hearings over the next four years to have the B-movie producers’ claim dismissed.
But both sides were forced out after two different judges said the matters were too complex and a full hearing would be needed.
In 2022, Jonathan Hill, a lawyer for Lucasfilm and Lunak, explained to Justice Francesca Kaye at the Supreme Court that Tyburn had signed a contract with Mr. Cushing in 1993 in which he planned to appear in a television movie “tentatively called Mr. Cushing’s Legacy of Horror, which was never made.”
Part of that contract “attempted to make provision for the fact that Mr. Cushing was terminally ill at the time and therefore there were doubts about how or if he would be able to contribute to the TV movie.”
Stating that the clause gave Tyburn the right to veto the reproduction of Mr. Cushing’s SFX footage if the planned TV movie was not made, Tyburn sued the two Disney companies for “unjust enrichment.”
The court heard that administrators of Mr Cushing’s estate noted that the estate received £28,500 after tax in return for granting Disney permission to use the horror icon’s image.
Tom Moody-Stuart KC, for Tyburn, told the judge: “My clients were contractually granted the right of first use, or right not to consent, to the reproduction of Mr Cushing’s performance rights by technological means.
“We received either direct or indirect benefit.
“To be fair, Lucasfilm needed two permits – one from the estate and one from Tyburn.”
But defending the claim, Mr Hill told the judge that because the footage used to produce SFX Peter Cushing came from the original Star Wars film, it was not required despite the estate’s approval having been obtained.
“Mr. Cushing authorized Star Wars Productions to make copies of recordings of his performance,” he said.
“Therefore, the rights to these copies belong to Star Wars Productions.”
He added that in the production of Rogue One, the Disney companies “obviously worked from copies of recordings of Mr. Cushing’s performances.”
He said the Disney companies did not need any permission from Tyburn because he had already been allowed to appear in Star Wars in 1977 under their agreement with Mr. Cushing, adding: “Even if there was enrichment, it was not at Tyburn’s expense.”
Lady Carr, who gave her verdict today, agreed with this view and said that although Tyburn stated that the Disney companies were directly enriched by them, this had no legal basis as it was impossible to identify anything that belonged to Tyburn and was transferred to Disney.
He added that the rights the property granted to the Disney companies in the 2016 Agreement were not the same as those granted to Tyburn by Mr. Cushing under the 2016 agreement.
Lady Carr, sitting with Sir Colin Birss and Judge Zacarol, said:
“When Tyburn discovered that Lucasfilm was attempting to make Rogue One and planned to recast Mr. Cushing in the role of Grand Moff Tarkin, he wrote a letter to Lucasfilm, claiming that he was not allowed to do so without Tyburn’s permission. In that letter, Tyburn argued that he had suffered a significant loss as a result of Lucasfilm’s actions/intended actions.”
‘The losses were said to consist of approximately £250,000 spent on TVM and consequential damages arising from Mr Cushing being deprived of the commercial advantage of being “first out of the gate” on a film in which he starred after his death.
“An attempt was made to reach a compromise with Lucasfilm. No such compromise was reached. Rogue One was completed and became a huge commercial success.
“For the purposes of this appeal, we must assume that Tyburn will be able to prove at trial that the appellants were enriched by the 2016 agreement, that the enrichment was unfair and that there was no defense against them.
“The only issue, therefore, is whether the appellants have enriched themselves at the expense of Tyburn.
“Wherever the line is drawn, Tyburn’s argument is clearly on the wrong side.
“Accordingly, we allow this appeal and dismiss Tyburn’s claim against the appellants,” the judge said.
