Is ‘The Pit’ a spinoff, sequel, or something else entirely? Scott Hervey and Tara Sattler break down the lawsuit over ‘ER’ and whether ‘The Pit’ crosses the legal line into derivative territory on this episode of The Briefing.

Watch this episode on the Weintraub YouTube channel.

Scott:

A legal battle is in full swing over the hit medical drama, ER and the Pit, a new medical drama set in Pittsburgh. The agreement between the creator of ER, Michael Crichton and WB, says that any sequels, remakes, spinoffs, and/or other derivative works require the approval of Crichton, Amblin, and Warner Brothers. So, is the Pit any of those things? I’m Scott Hervey, a partner at the law firm of Weintraub Tobin, and today I’m joined by my partner, Tara Sattler. We are going We’re going to discuss ER versus the Pit. What is the Pit? On this installment of The Briefing. Tara, welcome back.

Tara:

Hi, Scott. I’m happy to be here, especially talking about this topic. I really love all these medical traumas and was a big fan of ER back then, so this is going to be a fun one.

Scott:

Right. Did you do your homework this weekend?

Tara:

I did.

Scott:

Yeah, I did, too. I think Binge about five episodes of The Pit.

Tara:

And I liked it.

Scott:

Yeah, it was good.

Tara:

It was easy to do.

Scott:

I got to say, I Before we get into it, I am amazed at how the actors really sell themselves as doctors. I’m not a doctor, so probably maybe when a doctor is watching this, they probably look at it and go, They did that all wrong. We do when we watch legal traumas and we’re like, This is wrong, all wrong. But from a layman, non-doctor, it looks quite, quite impressive.

Tara:

I agree.

Scott:

Well, so we previously reported in an episode where we broke down the initial skirmish between Crichton and W. B. And how Sherry Crichton survived Warner Brothers’ attempt to shut down the lawsuit, her lawsuit, against Warner Brothers with an anti-slap Today, we are going to look at what will likely be next for Sherry Crichton, and that is establishing that the pit is some type of derivative of E. R. The 1994 agreement between Michael Crichton and Warner Brothers regarding the hit series E. R. Specifically freezes any subsequent productions. The exact wording used in the 1994 agreement is as follows, Any and all sequels, remakes, spin in-offs and/or derivative works shall be frozen, with mutual agreement between Creighton, Amblin, and Warner Brothers being necessary in order to move forward in any of these categories.

Tara:

That’s really the crux of Creighton’s case against Warner Brothers. What exactly is the Pit?

Scott:

Right. Let’s go through that part of the 1994 agreement, and let’s start with the question of whether the Pit is a sequel of E. R. I think the place to look at for the definition of sequel is probably the Writers Guild of America Minimum Basic Agreement. Under the WGA, a sequel, at least pursuant to the WGA MBA, it’s defined as a film or a picture where the principal character of the original film or picture participate in a new and different story.

Tara:

On Noah Wiley played Dr. John Carter, and on the Pit, Noah Wiley plays Dr. Michael Robbie Rabinovitch. Are those characters essentially the same, or is Robbie really John Carter, 15 years later?

Scott:

Yeah, that’s a tough one. On the surface, it seems that the answer is going to be no, because the two characters, they have different names. We don’t really know too much Dr. Robbie’s backstory yet. We know a little, but we don’t know five episodes in. We don’t really know a whole heck of a lot. But I don’t think it’s going to be that simple of an inquiry?

Tara:

Probably not, but I do think it’s safe to say that the Pit isn’t a remake of ER. Again, going back to the WGA, for definitions, a remake is substantially similar to a prior motion picture or television program regarding principal characters, setting, plot, storyline, tone, events, and structure.

Scott:

Right. Yeah. It’s very true looking at that. The Pit is not a remake of ER at all. But is the Pit a spinoff? As you know, there’s two types of spinoffs. We have a generic spinoff and a planted spinoff.

Tara:

Right. A planted spinoff is commonly understood to be a new series in which the main or characters of the new series are not regular characters in the first series, but is someone who’s introduced in the original series for the specific purpose of creating a new series with that character. An example is Melrose Place, which is this planned spin off of Beverly Hills 90210, as the characters in the new series, Melrose Place, were introduced in the original series, specifically to spin off into the new series.

Scott:

Yeah, I’m going to thank the WGA/MBA specifically for that example, but I will say that they probably need to update it because I bet you a lot of our listeners and viewers are like, What’s Melrose Place? What’s Beverly Hills 90210? All right. A generic spinoff is commonly understood to be a new series using continuing characters from the first series. I’m going to give you an example. Thankfully, these shows are They’re still being broadcast, mostly on fast channels now, but they’re still out there. For example, Fraser is a generic spinoff of Cheers as the character of Frasher was a regular character on the earlier series. If the Pit was going to be anything, it would be a generic spinoff. The argument here would be that the character Noah Wiley plays on the Pit, so Dr. Ravi Rabinovitch, is Dr. John Carter, 15 years later. I guess the problem is, though, he’s not called John Carter on the Pit. He’s called Ravi Ravinovitch.

Tara:

I think that’s a big problem. I think that’s a big problem with that argument. Another thing to look at is whether the fit is some other derivative work. Let’s look to the Copyright Act there to define derivative works. The Copyright Act says a derivative work is a work based upon one or more pre-existing works such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or other form of work which may be reactive, transformed, or adapted. That’s a lot of examples, but I think that is helpful in our analysis.

Scott:

Yeah, I don’t know. I think that’s more words than helpfulness. I think it might be more helpful for us to look at it this way. One way to figure out if a work is a derivative is to ask, if the second work was made without permission, would it be an infringement? Because a derivative is basically a work that would be infringing of the original copyright, except that you have permission to make it from the original copyright holder. I think that’s the easier way to look at it.

Tara:

That’s a lot more It’s accessible. Let’s do that.

Scott:

Yeah. Let’s look at the PIT and ER through that framework. Would the PIT be a copyright infringement of the ER? In order to state a claim for infringement, a plaintiff must show substantial similarity between the work’s protected elements. Now, determining whether works are substantially similar involves a two-part analysis consisting of the The extrinsic test and the intrinsic test. The extrinsic test assesses the objective similarities of the two works, focusing only on the protectable elements of the plaintiff’s expression, whereas the intrinsic test examines an ordinary person’s subjective impression. Although a plaintiff must prove both to establish substantial similarity, a finding of substantial similarity under the extrinsic component is a necessary prerequisite to considering the intrinsic component, which is expressly reserved for the jury.

Tara:

To apply the extrinsic test, you need to first filter out elements that are not protected under copyright law. These are things like facts, ideas, then there’s a fair, which are situations and incidents that naturally and necessarily flow from a certain plot, and other stock elements. Then make a determination after filtering out certain elements that are not protected, whether the two works are or are not substantially similar.

Scott:

Right. So I spent my weekend doing my homework, as did you, and watched a number of episodes of The Pit. Look, obviously, there are similarities between The Pit and ER. Both are medical traumas. Both take place at a teaching hospital, and both are set in the emergency room. Both have Noah Wiley as a star, and they also have the same writer, Scott Gramell, who was a writer. I hope I’m pronouncing his last name correctly. He was a writer on ER. He created The Pit. They also have John Wells, the showrunner and executive producer of ER. He was also an executive producer on The Pit.

Tara:

But there are also some big differences. The Pit utilizes a real-time format, meaning the show unfolds in real-time, like the show 24 with Kiefer Sutherland, and unlike the more episodic structure of ER. The Pit also focuses on what it’s like working in a post-COVID healthcare setting, an exploration into the complexities of the healthcare system and the bureaucracy of working in a hospital.

Scott:

Right. So let’s subtract the unprotectible elements. The basic concept of a medical drama set in an ER, that is a unprotectible element. Let’s also take away the basic concept of a show set in a teaching hospital.

Tara:

Yeah, and there are also other medical shows set in a teaching hospital. In fact, a lot of hospitals are teaching hospitals.

Scott:

Right, that’s right. According to a very quick Google search, there were a lot. Grey’s Anatomy, Scrubs, The Good Doctor, House, The Resident, New Amsterdam, Saint elsewhere, Code Black, and private practice. A lot more than I thought.

Tara:

Yeah, and I can think of some that even aren’t on that list. Let’s take those things away and analyze What’s similar?

Scott:

Not a lot, right? I think not a lot. That’s what the argument is going to look like, and that’s what it’s going to come down to. I’m sure both sides will come up with lists of differences and similarities, but having just spent the weekend binging five or six episodes of the pit, I really don’t see much crossover other than the unprotectible elements that we talked about above here.

Tara:

I agree with you, Scott. I think another thing that the court is going to have to think about is what precedent would they be setting if they do deem the pit to be some derivative work of ER because we have a lot of medical traumas, we have a lot of legal traumas, there’s a lot of emergency crew type traumas. What would we do to the landscape of television if we’re taking something like medical drama and starting to really muddy those waters.

Scott:

Right. I mean, look, the Pit really could have been a prequel to ER. I mean, if this was John Carter, and if it were in Boston, and if it were the same ER, but just the same settings, was post-COVID, the hospital had gone through a M&A, and maybe it was more corporate, and dealing with the economic pressures, okay, then it definitely would have been a prequel. Not a prequel, sorry, a sequel. But also you can take those elements. It’s a teaching hospital, it’s ER. You’re dealing with a very stressed-out doctor, figuring how to navigate health care delivery post-COVID, dealing with private care and private pay, and and all of the consolidation in the health care industry and the lack of economic resources, you can make that a new television show, I think. I think so.

Tara:

I think so, too. And just because there’s a lot of the same people involved, part of the reason that I’m sure they’re involved is because they’re familiar with how to run a successful medical drama show. That doesn’t mean that it’s necessarily infringing or derivative. Right.

Scott:

I agree with you. Well, look, let’s see what happens with the Sherry, Kreight, and Warner Brothers case. It will be interesting. We will definitely keep an eye on that case because that impacts a lot of what you and I do.

Tara:

Absolutely.

Scott:

Well, that’s all for today’s episode of The Briefing. Thanks to Tara for joining me today. And thank you, the listener or viewer, for tuning in. We hope you found this episode informative and enjoyable. If you did, please remember to subscribe, leave us a review and share this episode with your friends and colleagues. If you have any questions about the topics we covered today, or if you disagree with us, please leave us a comment.