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

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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. Watch this episode on the Weintraub YouTube channel.   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.

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