The use of new technology in entertainment industries is typically welcomed with open arms and tons of excitement. However, some wonder, has technology gone too far? Where do we draw the line for moral limits? And how will case law apply, when these advancements are just beginning to come to light?
The case of Peter Cushing’s Digital Recreation in Rogue One creates the perfect storyline to discuss these topics, as well as unjust enrichment, image rights and potential new laws.
Background
Late Peter Cushing, an iconic British actor, was best known for his roles in horror films and the Star Wars franchise. He passed away in 1994 at 81 years old, after acting for over six decades and appearing in over 100 films.
Now, digital technology has advanced enough to recreate deceased actors in a way that many would never even realise is CGI.
In 2016, he re-appeared on the big screens in Rogue One: A Star Wars Story. His role as Grand Moff Tarkin, a character that he had originally portrayed in the 1970s, came as a shock to many. In its essence, Peter Cushing was digitally resurrected.
However, despite the number of nostalgic fans that appreciated the “resurrection”, this ignited an intricate legal battle in the UK courts.
*Unjust enrichment refers to when one party benefits unfairly at the expense of another, without legal justification.
*Intellectual property rights protect creations like images, performances, and characters to ensure that the creator or rights holder has control over how their original work is used, distributed, or reproduced.
The Lawsuit
In 2019, Tyburn Film Productions, which is a company founded by late Cushing’s close friend, Kevin Francis, filed a lawsuit against Disney’s responsible subsidiaries. Tyburn claims that Cushing had an agreement, which was created shortly before his death, in which he explicitly prohibited the use of his image likeness without Tyburn’s prior consent.
Thus, Tyburn claims that Disney, through its subsidiary Lunak Heavy Industries (UK) Ltd., as well as Lucasfilm, violated this agreement. Therefore, they would be unjustly profiting from Cushing’s likeness in the 2016 film, Rogue One. For damages, they are seeking over £500,000 for “unjust enrichment.”
*Image likeness refers to the visual representation of a person, including their face, physical appearance, or unique characteristics that make them identifiable and it is a part of a person’s intellectual property and personal rights.
Disney’s Defence
In response, Disney and its subsidiaries argued that in reality, Cushing’s 1977 contract allowed for the future use of his likeness, even including by means of special effects. Additionally, they claim that they paid £28,000 to the executors of Peter Cushing’s estate to obtain even further permission to use his image in the 2016 film.
Although some may argue that Disney had enough good-faith efforts to uphold their moral due diligence, their attempts to have the case dismissed have been unsuccessful.
Set for Trial
In September of 2024, the High Court refused Disney’s request to have the case dismissed. His Honour, Deputy High Court Judge Tom Mitcheson KC, did acknowledge that Disney’s defence was “strong.” However, he stated that he is, “not persuaded that the case is unarguable to the standard required to give summary judgment or to strike it out.”
His Honour continued, noting that, “In an area of developing law it is very difficult to decide where the boundaries might lie in the absence of a full factual inquiry.” Due to the fact that this case will likely set important precedents for using digital likeness in film, there is an unwavering level of caution being taken.
The upcoming trial, which has yet to be dated, will delve into the specifics of Cushing’s 1977 contract, his agreement with Tyburn made before his death, and all of the legal implications that surround the case.
*It is important to note that this is not the first instance in which the Star Wars franchise uses special effects to recreate deceased actors. After her death in 2016, Carrie Fisher’s likeness as Princess Leia was recreated for Star Wars: Episode 9—The Rise of Skywalker. However, Fisher’s family completely approved of her recreation so Peter Cushing’s case is the first time that Disney is being sued for this practice.
New Laws
Already, courts around the world are preparing for this new potential matter.
California, home to Hollywood’s massive film industry and a global hub for entertainment, has decided to update their postmortem right of publicity statute.
Currently, it already limits claims arising out of the use of a deceased individual’s name, likeness, or voice to uses “on or in products, merchandise, or goods, or for purposes of advertising and selling.”
However, the new provision will create liability specifically for any unauthorised use of a “digital replica of a deceased personality in an audiovisual work or sound recording, in any manner related to the work performed by the deceased personality while living.” This notably excludes any regard to whether it is used on a product or for advertising purposes. Additionally, it specifically extends to anyone who produces, distributes or makes available the digital replica.
This new provision, Section 3344.1 of the California Civil Code, is set to become effective on January 1, 2025.
Although California’s new law won’t directly affect the outcome of the UK Peter Cushing case, it shows a significant reluctance within the entertainment industry regarding deepfake and AI technologies.
*Digital replica is defined as “a simulation of the voice or likeness of an individual that is readily identifiable as the individual and is created using digital technology.”
Into the Future
As Cushing’s case moves toward a groundbreaking trial in the near future, movie fanatics, legal experts and the entertainment industry remain closely attentive.
The Peter Cushing case, formally titled, “Tyburn Film Productions Ltd. vs. Lunak Heavy Industries (UK) Ltd. & Lucasfilm Ltd. LLC.” will hopefully bring much-needed clarity on the legal limits of “digital resurrections.”
Regardless, it will definitely influence how studios approach contracts with their actors (and their estates). Studios will likely create more emphasis on the use of likeness in CGI or AI-generated performances after death in order to provide themselves the necessary permissions and be overall more cautious of protecting themselves.
As technology evolves, so too must the legal frameworks that govern it.
Contact Us
If you are an actor or entertainment professional, this case serves as a reminder of how important every clause in your contracts can be. Having a solicitor thoroughly review your contracts to ensure that they serve to your benefit and that nothing goes unnoticed or misunderstood is essential. We are here to help clear up any ambiguities. Contact Freeman Harris Solicitors for advice to protect your future.
