ER Redux? The Anti-SLAPP Motion That Didn’t Stick

The estate of ‘ER’ creator Michael Crichton is suing Warner Brothers, claiming their new medical drama ‘The Pit’ is a derivative of ‘ER.’ IP and Entertainment attorneys Scott Hervey and Jessica Corpuz discuss this case on this episode of The Briefing.

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Scott: A legal battle is unfolding over the hit medical drama, ‘The Pit,’ which the estate of Michael Crichton claims is the unauthorized successor to ER. The estate, represented by a roadrunner, JMTC LLC, has sued Warner Brothers television over The Pit, a new medical drama set in Pittsburgh. Warner Brothers attempted to shut down the lawsuit by using California’s anti-slap statute, arguing that the case threatened their free speech rights, but the court didn’t bite. I’m Scott Hervey, a partner with the law firm of Weintraub Tobin, and I’m joined today by my partner, Jessica Corpuz.

We are going to talk about the court’s decision to deny Warner Brothers’ anti-slap motion and what this means for contract rights in the entertainment industry on today’s installment of The Briefing. Jessica, welcome back to The I’m glad we could get my people to call your people and get you booked again.

Jessica: Thanks so much for having me, Scott.

Scott: Thanks. Well, why don’t we jump right into this?

Jessica: Thanks, Scott. So today we’re unpacking a high-profile case in the entertainment world, Road Runner: JMTC/LLC versus Warner Brothers Television, which involves the estate of legendary author and screenwriter Michael Crichton, the long-running medical drama, ER, and a new TV show called The Pit.

Scott: That’s right. This case revolves around claims of breach of contract, interference with contractual relations, and whether the pit is a derivative of ER. Warner Brothers attempted to shut down the lawsuit with an anti-slap motion under California law, but the court denied it. So let’s break it down, starting with some background on the parties.

Jessica: So Michael Crichton, of course, is best known for Jurassic Park, but he also co-created ER, the wildly successful medical drama that ran for 15 seasons. After his passing, Crichton’s widow, Sherry Crichton, on behalf of his estate, represented in the dispute that we’re talking about today by Roadrunner J. M. T. C. Lllc, has been involved in legal efforts to protect his contractual rights as the creator of ER. Warner Brothers television, on the other hand, is a dominant force in TV production, and they’re behind The Pit, a new medical drama set in Pittsburgh. The estate argues that the Pit is a derivative work of ER, and that Warner Brothers breached the 1994 agreement between Crichton Warner Brothers, concerning the ER pilot and the series.

Scott: That’s right. The 1994 agreement between Crichton and Warner Brothers specifically freezes any subsequent productions. The exact wording used in the 1994 agreement is as follows, Any and all sequels, remakes, spinoffs, and/or other derivative works shall be frozen, with mutual agreement between Crichton, Amblin, and Warner Brothers being necessary in order to move forward in any of these categories.

Jessica: Okay, so that’s the contract. But let’s talk a little bit about the facts surrounding the party’s discussions about the pit, since those facts play a really big role in this outcome we’re talking about today.

Scott: Yeah, you’re right. They really do. So the complaint says that around Thanksgiving 2022, Sherry Crichton got a call from John Wells. Wells was one of the producers of ER, who purportedly told Sherry that there was going to be a big press release on deadline within days announcing an ER reboot, starring Noah Wiley, and that Wells would be producing it with Warner Brothers television for the HBO Max streaming service. According to the complaint, Warner Brothers made an offer, Crichton made a counter offer, and that included a guaranteed created by credit for Michael Crichton. The complaint alleges that Warner Brothers basically said that Crichton’s estate would have to basically take it or leave it, that there would be no improvements upon the offer that was made. So Crichton told Warner Brothers that they were going to leave it and that they were not going to grant permission for the pit.

Jessica: So supposedly after this, Noah Wiley contacted Sherry in an attempt to find some way to move the project forward. The complaint includes an excerpt from an email that she sent to Wiley. It’s a very long email, but a portion of it says, and I’m quoting here, I deeply appreciate your classy note to me today, and also for your efforts to find a bridge between the parties that would allow for the series to go forward. The idea of you returning in your signature role as Carter, which, as you know, was based on Michael’s own life, with John as the showrunner, is exciting and filled with tremendous potential. But ultimately, all of this rests with Warner Brothers. If Warner Brothers wants to reengage a fair and appropriate negotiation for a series as successful as ER and treat us respectfully through the process, my representatives stand ready to talk.

Scott: Right. After that, there continued to be some negotiations with Welles, and Wiley, taking the lead. They, Welles, Wiley, and Sherry, seemed to reach terms acceptable to Sherry, and this included a commitment to support a created by credit for Michael Crichton before the WGA and a $5 million guarantee in the event the WGA did not accord Crichton, the created by credit. However, it seems that, at least according to the complaint, once Warner Brothers came back into the picture, those two essential deal terms went away, and Warner Brothers then claimed, after they couldn’t come to an agreement, that the project was dead.

Jessica: Well, was it really, though? So according to the complaint, the project wasn’t dead at all. The complaint states that shortly after Warner Brothers claimed that the ER Reboot was dead, the Pit was announced. It has the same producers, the same star, and is on the same network as the project proposed to Sherry Crichton. The main difference, according to the complaint, is that the Pit is set in Pittsburgh rather than Chicago. Go.

Scott: Right. In a press release, the Crichton team says that changing the show’s name does not change the fact that The Pit, which has exactly the same premise, structure, themes, pace, producers, and star, is ER through and through. Warner Brothers countered with its own press release, which called the suit Baseless, and claimed that the Pit is a new and original show.

Jessica: So we know that Sherry Crichton sued Warner Brothers and others for breach of contract. Warner Brothers moved to dismiss the lawsuit under California’s anti-SLAP statute, and SLAP stands for a strategic lawsuit against public participation. The court heard oral arguments on the motion, which I bet were probably as dramatic as the first episode of The Pit.

Scott: Yeah, I bet you they were. So, okay, this brings us to the legal issues at play, the anti-slap motion. California’s anti-slap statute under California Code of Civil Procedure, Section 425. 16, is It’s designed to prevent lawsuits that aim to silence free speech, particularly in matters of public interest. It’s a two-step process. First, the defendant, Warner Brothers, in this case, must show that the claims arise from protected activity like free speech or petitioning. If the defendant succeeds, the burden then shifts to the plaintiff, so Crichton’s estate in this case, to show that they have a probability of prevailing on the merits of the claim.

Jessica: Yeah, that’s exactly right. Here, Warner Brothers argued that producing the pit is a protected form of speech. Here, the court agreed that creating a television show qualifies as free speech, meaning that Warner Brothers met the first prong of the anti-slap analysis. However, the estate, the plaintiff, countered that their claims really weren’t about protected activity, a public discussion of the challenges in urban medicine, but rather a breach of contract, specifically a violation of the frozen rights provision from a previous agreement regarding in the ER.

Scott: Right. That was a really interesting attempt to try to parse that claim and take it out of the scope of California’s anti-slap statute. But ultimately, the court agreed with Warner Brothers and cited the case, Newman versus Ross, a case about a writer who sued a producer and others, alleging that they stole her idea for a television show and used it for a spinoff series. The Norman Court found that the breach of contract and the intentional interference with contract claims that issues in the matter were both premised on the protected activity of making the television show.

Jessica: Yeah. So because Warner Brothers prevailed on the first prong, the court then went to the second prong. Could Crichton show a probability of prevailing And this is where Warner Brothers lost its argument.

Scott: That’s right. The court found that Crichton had submitted enough evidence to meet the minimal merit standards to show that a prima facia case, that the pit was derived from ER and that Warner Brothers could have violated their prior contractual obligations.

Jessica: Yeah. This is a great illustration of how anti-slap motions aren’t a silver bullet. They’re meant to stop frivolous lawsuits that stifle free speech, but they can’t be used to escape legitimate breach of contract claims. But what if things were a little bit different? What about an alternative scenario where the parties had previously negotiated over an ER reboot? What do you think?

Scott: Yeah, that’s an interesting hypothetical. If there had There had been no prior discussion between the Crichton estate and Warner Brothers. I think Crichton’s case would have been much weaker. The estate’s argument hinges really on the prior negotiations between the parties, the crossovers between the proposed reboot of ER and the pit, and the relatively short period of time between Warner Brothers telling Crichton that ER reboot was dead, and the announcement of the pit. I mean, those facts just don’t look good for Warner Brothers. Warner Brothers could have more easily defended the pit as an entirely new and independent work rather than something derived from ER, had there never been a discussion with Sherry Crichton. At least that’s what I think.

Jessica: I agree completely. So the initial framing of the project by Wells and Wiley as an ER reboot and the history of negotiations between Warner Brothers, Wells, and Wiley played a huge role in this case in allowing it to survive the anti-slap stage. It’ll be really interesting to see how this plays out moving forward.

Scott: Yeah, absolutely. I think that’s where we’re going to have to leave it for today and see what happens next. So thanks, Jessica, for joining me today. And thank you, the viewer, for tuning in to the briefing. Don’t forget to subscribe and to follow us for more deep dives into the legal side of the entertainment industry. If you enjoyed this episode, please leave us a review and share this episode with your friends and colleagues. And if you have any questions about the topics we covered today, please leave us a comment.