By Ryan T. McGuire
In fall 1994, the television show “ER” debuted on NBC.[1] It made the careers of many young actors, including Noah Wyle, who would star as medical student John Carter.[2] The show adapted the 1974 screenplay “Emergency Ward” written by Michael Crichton.[3] In 2008, Mr. Crichton died suddenly. His wife, Sherri Crichton, had to step into his shoes by becoming the CEO of CrichtonSun and maintain her husband’s creative legacy.[4] In February 2020, Mr. Wyle contacted John Wells, the showrunner of ER, to develop a new series about John Carter for Warner Bros.[5] However, disagreements between Warner Bros. and Ms. Crichton put an end to that idea.[6] The team created the new show that became “The Pitt.”[7] The Crichton estate sued Warner Bros., Wells, and Wyle, claiming “The Pitt” was an unauthorized remake of “ER.”[8] This case raises the interesting question of whether Wyle and Wells infringed on the Crichton Estate’s copyright by creating a derivative work of “ER” in “The Pitt.”
Like most legal terms, “derivative work” is defined by the statute in a way that is both clear but open to interpretation. According to 17 U.S.C. § 101:
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.[9]
A derivative work is based on preexisting work(s). The statute provides a non-exhaustive list of examples, including dramatization and any other form in which a work may be recast, transformed, or adapted. To oversimplify, a derivative work is one that reworks the original work(s) in a new form. Additionally, if a modified version, as a whole, represents the original work, it is a derivative work. For example, if one made Mary Shelley’s Frankenstein into a movie, it would be considered a derivative work of Frankenstein.
Section 106 determines the exclusive rights of copyright owners.[10] Specifically, section 106(2) gives copyright owners the exclusive right to “prepare derivative works based upon the copyrighted work.”[11] Only the owners of a copyright have the right to create derivative works. If Frankenstein were not in the public domain, Mary Shelley would have the exclusive right to make a movie version. If “The Pitt” is a derivative work of “ER,” then only Michael Crichton or his estate has the exclusive right to create derivative works.
There are many similarities between the two series. Both series are medical dramas set in emergency rooms that focus on the lives of emergency room staff through realistic medical cases and star Noah Wyle.[12] Conversely, there are also significant differences between the two series. “The Pitt” is set in a Pittsburgh Medical Center, and “ER” is set in Chicago.[13] Each episode of the first season of “The Pitt” covered approximately one hour of a fifteen-hour shift.[14] ”ER” followed a more traditional episodic format.[15] “The Pitt” can show graphic and explicit content because it airs on HBO rather than on NBC, which is more restrictive.[16]
There are also public policy considerations that hinge on how courts interpret the statute. If “The Pitt” is a derivative of “ER”, what about “Grey’s Anatomy” or any other medical drama. The court would have to consider how this would affect other common dramatic formats, such as legal or sports dramas. On the other hand, one could argue there are good reasons to find “The Pitt” is a derivative work. Michael Crichton’s intellectual labor and property should be protected, and his family should benefit from his work after his death. It is unfair for large companies like Warner Bros. to exploit Mr. Crichton’s work after his death.
“The Pitt” likely has the stronger case because copyright law protects only the specific expression of ideas or genres, not the ideas or genres themselves. Medical dramas constitute a broad, popular genre, and courts are reluctant to grant copyright protection over such expansive categories. The landmark case Nichols v. Universal Pictures Corporation established this principle nearly a century ago.[17] In Nichols, Judge Learned Hand held that while copyright protects the specific expression of a work, it does not extend to general themes, stock characters, or plot patterns.[18] Judge Hand wrote that “nobody has ever been able to fix that boundary, and nobody ever can,” meaning there is no clear line between protectable expressions and unprotectable ideas. However, he emphasized that a work cannot monopolize basic story elements like “a quarrel between a Jewish and an Irish father, the marriage of their children, the birth of grandchildren, and a reconciliation.”[19] The court found no infringement despite similarities between the two plays because the defendant took “no more — assuming that it took anything at all — than the law allowed.”[20] Applying this reasoning to “The Pitt” and “ER,” the common elements of an emergency room setting, medical cases, and staff dynamics are the genre’s building blocks, not Crichton’s unique expression. Just as Nichols recognized that a comedy about interfaith marriage conflict could not be monopolized, a medical drama set in an emergency room cannot be either. Consequently, ‘The Pitt’ will probably not be found to be a derivative work of the competing show.
Inspiration is important in creative works. There would not be West Side Story without Romeo and Juliet.[21] There would be no Rent without La Boheme.[22] Society wants to protect intellectual property and the intellectual labor of creators. However, there needs to be limits on derivative property rights. The fuzzy boundaries of what is considered a derivative work under copyright law requires courts to set reasonable limits on these rights. If not, they risk stifling the sharing of creative works that copyright law is meant to encourage.
[1] Nicholas Kulish, Is ‘The Pitt’ Really an ‘ER’ Spinoff? Michael Crichton’s Estate Says It Is. N.Y. Times (Sept. 12, 2025), https://www.nytimes.com/2025/09/12/business/the-pitt-er-michael-crichton-lawsuit.html.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Kulish, supra note 1.
[7] Id.
[8] Id.
[9] 17 U.S.C. § 101.
[10] 17 U.S.C. § 106.
[11] Id.
[12] Zach Moser, If You’re Watching ER For The First Time In 2025, Don’t Expect It To Be Like The Pitt, Screenrant (May 8, 2025), https://screenrant.com/er-watch-after-the-pitt-different-explainer/.
[13] Id.
[14] Id.
[15] Id.
[16] Kulish, supra note 1.
[17] Nichols v. Universal Pictures Corp., 45 F.2d 119, 120 (2d Cir. 1930).
[18] Id. at 121.
[19] Id. at 121-22.
[20] Id. at 121.
[21] Logan Culwell-Block, 12 Musicals on Broadway and Beyond That Came From Shakespeare Plays, Playbill (April 23, 2021), https://playbill.com/article/12-musicals-on-broadway-and-beyond-that-came-from-shakespeare-plays.
[22] Maralee Nieves, 20 Movies and TV shows You May Have Not Known Are Adaptations of Classic Literature, Movieweb (Aug. 16, 2023), https://movieweb.com/movies-and-shows-based-on-classic-literature-you-may-not-know/.
