[co-author: Danielle Pettit]
Michael Crichton, author, director, and visionary created works that resonate today like Jurassic Park, Twister, Westworld, and ER. Now, his estate is suing the production team and leading actor of the newly released medical drama known as The Pitt for being a knock-off of ER. The lawsuit alleges a breach of contract action against Warner Bros. Television, claiming that the underlying concepts behind The Pitt mirror too closely to the original screenplay of the television series known as ER.
The original show, ER, aired on NBC with Noah Wyles as a lead actor playing Dr. John Carter. John Wells was hired as the initial showrunner on ER, later joined by R. Scott Gemmill in the series’ sixth season who held the title of supervising producer.
After negotiations with the Crichton estate to reboot ER failed, Warner Bros. announced the debut of The Pitt, a medical drama based in a Pittsburg emergency room, starring… none other than Noah Wyles. Wyles plays Dr. Michael “Robby” Rabinovitch, an entirely different character from his role in ER, but there are some noticeable similarities between The Pitt and ER. First, Wyles’ character in The Pitt is a doctor in the emergency room but 30 years older and more experienced. Second, The Pitt’s production team is similar to that of ER. Wells holds the position of executive producer. Gemmill holds the title of showrunner and is also one of the executive producers.
Lawsuits regarding unauthorized derivative artistic works often focus on copyright claims, but this is a contract case. Although Crichton assigned the copyrights of ER to Warner Bros. in the original 1994 agreement, the contract contained a “Frozen Rights Provision,” in which they agreed that “any sequels, remakes, spin-offs and/or other derivative works . . . shall be frozen, with mutual agreement between [the parties] being necessary in order to move forward . . .”
Crichton’s estate alleges that Warner Bros.’ creation of The Pitt is a clear breach of the Frozen Rights Provision in the 1994 agreement. In other words, the Frozen Rights Provision in the 1994 agreement transformed what might more commonly be a copyright claim into a breach of contract claim, putting both parties in a unique position.
If this were a copyright infringement case, Crichton’s estate would not only have to show that The Pitt is derivative of ER, but also meets the “substantial similarity test.” Proving substantial similarity can be difficult given the subjective nature of the analytic framework. Warner Bros. could also argue in defense that despite some similarities, they aren’t substantial because The Pitt takes on an entirely new setting, pace, and plot than that of ER.
With the breach of contract claim, Crichton’s Estate must prove that Warner Bros. breached the Frozen Rights Provision—which covers any “derivative work”—in their creation of The Pitt. However, proving that a work is derivative and overcoming the substantial similarity test are not the same thing. A work can be derivative but still fall short of the similarities required to prove copyright infringement. Thus, in the context of a breach of contract claim, Crichton’s estate need only prove that The Pitt is a derivative work to support their breach of contract claim, rather than meeting the burden of proof required of a copyright infringement claim.
IP rights are often covered in contracts, and it is worth considering the advantages and disadvantages of creating a specific contract provision like the “Frozen Rights Provision” here to limit future IP use. If The Pitt can convert Dr. Carter to Dr. Robby, then perhaps you can convert an IP claim into a breach of contract claim.
