Is The Pitt a Copyright Infringement of ER?

On January 9, 2025, the streaming service Max debuted its latest hospital drama, The Pitt. The series, which stars Noah Wyle and is produced by R. Scott Gemmill, immediately drew comparisons to the 90s show ER.

The comparisons were for obvious reasons. Both shows shared a star and a producer, both were set in a hospital emergency room, and featured many similar tropes and plot points. Some even speculated before the launch if the show would be “ER 2.0.”

However, by the time the show aired, it was already embroiled in a legal battle over that exact question. Sherri Alexander, the widow of Michael Crichton, filed a lawsuit against the show in August 2024.

The allegations are straightforward. They allege that Warner Bros. breached a contract that Crichton signed with the company that forbade the creation of new ER works without his permission.

Warner, for their part, claim that The Pitt is not a derivative work of ER. Despite the clear similarities, they highlight differences between the shows and argue that the similarities are not copyrightable.

So, which side is right? It’s a really difficult question.

The Background of the Case

The early 1990s were likely the peak of Michael Crichton’s fame. His stories were the basis for Jurassic Park, Rising Sun, and Twister, among other films. During this time, Warner approached him about licensing his screenplay for ER.

Crichton negotiated a “frozen rights” clause into his contract. This meant that they would need his permission if Warner wanted to create a new work based on ER. Crichton passed away in November 2008, transferring his rights to his estate to his widow, Sherri Alexander.

According to Alexander, in 2020, various individuals began working on a reboot of ER without notifying the estate. Two years later, they pitched the show to various networks and received interest from both NBC and HBO.

She alleges that no one contacted her until November 2022. Warner and Alexander began negotiating in December 2023 but could never reach a deal. In October 2023, they told her that the ER reboot was dead.

In March 2024, Warner announced The Pitt. Alexander alleges that the show featured many of the same elements as the pitched ER reboot. As such, she filed a lawsuit in August 2024 claiming breach of contract.

Warner, for their part, say that The Pitt is a very different show from ER, and the fact that they share cast and producers is irrelevant. They also claim that the overlaps between the two do not enjoy copyright protection for various reasons.

Warner had filed an anti-SLAPP claim, saying the lawsuit was meritless and an attempt to stifle their free speech. However, in February, the court ruled against that motion, saying the lawsuit was not so meritless as to warrant a SLAPP claim.

The case is ongoing.

This begs a simple question: Who is right? The answer is that both sides have very good points.

An Unusual Case

This case is somewhat unusual because it is not a copyright infringement lawsuit. Instead, all the claims center around a breach of contract.

However, whether that contract was breached hinges on a copyright question: Is The Pitt a derivative of ER?

Warner points to several key differences between the shows. Where ER was a “case of the week” show, each episode of The Pitt represents one hour in a grueling emergency room shift.

ER was a network show that featured minimal violence, nudity, or gore. However, The Pitt is on a streaming service with much more mature content.

Finally, though both shows have Noah Wyle as the lead, he plays different characters in both. They add that similarities such as the hospital setting, medical emergencies, and so forth are familiar tropes that copyright doesn’t protect.

Alexander, however, alleges that the hourly format was part of Warner’s scrapped ER reboot. She acknowledges that the characters are different but says many of Wyle’s traits are based on elements Warner pitched in 2022/3.

In short, Alexander alleges that Warner took the pitch for the ER reboot and simply changed it to The Pitt. However, Warner argues that the shows are different and that no one can own the similarities they share.

Both sides have a point.

The Big Hurdles

Both sides have some significant hurdles that they need to overcome.

For Alexander, it’s the simple fact that nobody owns the idea of a drama set in a hospital. It’s a ubiquitous setting, and such dramas predate ER. Even some of the elements she highlights, such as the one-hour format, existed in other shows, notably 24.

With so many different shows available, the estate will have trouble showing what is unique to ER and what was copied or repurposed by The Pitt.

However, Warner has its own challenges. There’s not much denying that an ER reboot was in the works, that a deal fell through, and that those working on that reboot went on to make The Pitt.

Warner has described this as a freeing experience for the creators, an opportunity to do something new and unshackled by the legacy program. However, given the similarities between the pitch and the final show, it will be difficult to deny that they carried some things over.

The question is, do those elements matter? Do they amount to a copyright infringement and/or a breach of the contract? That is a difficult question, and that’s precisely why the judge allowed the case to move forward.

Bottom Line

In the end, the judge made the correct decision. While the lawsuit has problems, it’s clearly not a frivolous case. The disagreements here are legitimate, and there’s no clear right or wrong answer, at least not at this point.

However, it’s unlikely that this case will reach a trial. With The Pitt‘s success and so much on the line, a settlement seems the most likely outcome. Both sides have enough issues that there’s a strong motivation to do that.

This isn’t a case of a little-known industry outsider suing a major player. The Crichton estate is one of the most notable in entertainment. Warner is one of the largest and most powerful media companies. Such battles between giants rarely make it to the courtroom.

If it does, the judge and/or jury will have much to weigh in on. They will have to consider how similar the two works are, how much of both are tropes from earlier shows, whether Warner negotiated in good faith, and how similar The Pitt is to the scrapped ER reboot, to name just a few.

One of the things that makes this case interesting is that there is no clear right or wrong. Both sides have strong arguments and weaknesses. It will be interesting to follow until whatever conclusion is reached.