IP in Critical Condition

September 18, 2025

When Warner Bros. premiered The Pitt on Max, the studio presented it as a bold new medical drama. But to the estate of Michael Crichton—the physician, novelist, and creator of ER—it looked more like a revival without permission. With Noah Wyle once again donning scrubs and longtime ER producer John Wells at the helm, the project felt less like a new story and more like an echo of the series that redefined hospital dramas in the 1990s. The problem, according to the estate, is that Warner Bros. bargained away the right to make anything resembling ER without Crichton’s consent three decades ago.

In the age of streaming, where nostalgia is currency and reboots dominate programming slates, the law is being asked to do something new: decide when inspiration becomes appropriation not under the Copyright Act, but under the four corners of a decades-old contract. That is the central drama in Crichton Estate v. Warner Bros., where the estate claims The Pitt breaches a 1994 agreement protecting the rights to ER. This case is not simply about one show or one studio. It is a test of how far courts will enforce “frozen rights” provisions, how expansively they will interpret the term “derivative work” when it is defined privately rather than statutorily, and whether procedural safeguards like anti-SLAPP can insulate expressive industries from contract claims. For intellectual property practitioners, the answers will shape not just the entertainment industry, but every creative sector where old works are mined for new audiences.

Contractual Rights Beyond Statutory Boundaries

The Copyright Act gives authors the exclusive right “to prepare derivative works based upon the copyrighted work” (17 U.S.C. § 106(2)). Congress defined “derivative work” broadly in § 101 to include any form in which a work “may be recast, transformed, or adapted.” Yet courts have consistently pared back the scope of protection, holding that generic ideas, themes, or stock elements are not protectable expression. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348–49 (1991); Shaw v. Lindheim, 919 F.2d 1353, 1357 (9th Cir. 1990).

By those standards, The Pitt might not infringe copyright under those standards. Emergency rooms, tense procedures, and doctors struggling with their personal lives are all tropes of the genre. But the Crichton estate’s lawsuit sidesteps this limitation. It rests not on 17 U.S.C. § 501, but on contract. The 1994 “frozen rights” clause required Warner Bros. and Crichton to mutually agree before creating any sequels, remakes, spin-offs, or derivative works. By placing consent rights in a contract, the estate argues, Crichton bought protections broader than copyright would have supplied.

Courts have recognized this possibility. In ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996), the Seventh Circuit enforced a license that restricted use of data beyond copyright’s baseline. Similarly, in Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 456 (6th Cir. 2001), the court upheld an implied-in-fact agreement to pay for creative concepts even though the ideas themselves lacked copyright protection. These cases underscore the point that parties may contract around statutory defaults. Private law can—and often does—reach further than public law.

The Procedural Skirmish: Anti-SLAPP Meets Contract Law

Warner Bros. responded with a familiar defense: California’s anti-SLAPP statute, Cal. Civ. Proc. Code § 425.16. Anti-SLAPP motions allow defendants to strike claims that target protected expression unless plaintiffs can show a “probability of prevailing.” See Navellier v. Sletten, 29 Cal. 4th 82, 88 (2002). The bar is low—plaintiffs need only demonstrate “minimal merit.” Baral v. Schnitt, 1 Cal. 5th 376, 384 (2016).

Judge Wendy Chang tentatively denied Warner Bros.’ motion in February 2025, finding that the estate’s claims cleared this modest threshold. The ruling highlights the limits of anti-SLAPP in IP disputes: while expressive works enjoy broad constitutional protection, courts are reluctant to use anti-SLAPP to extinguish contract claims rooted in bargained-for rights. The message for studios is clear: anti-SLAPP is not a silver bullet when private agreements create enforceable obligations.

Why The Pitt Matters Beyond Hollywood

The litigation forces courts to confront a difficult question: how should “derivative work” be interpreted when defined by contract rather than statute? Copyright doctrine draws fine lines between protected expression and unprotectable ideas. But contracts can blur those lines, capturing “look and feel,” continuity of creative personnel, or even thematic DNA.

The Crichton estate will argue that The Pitt—produced by John Wells, starring Noah Wyle, and echoing the tone of ER—falls within that contractual definition. Warner Bros. will argue that the estate seeks a monopoly over an entire genre. However the court resolves this, the ruling will resonate across industries.

In publishing, estates increasingly rely on frozen rights to control adaptations and sequels. In gaming, developers routinely extend franchises through remakes, reboots, and downloadable content. And in the emerging field of artificial intelligence, questions of derivation loom large: is an AI-generated sequel to a novel or film a “derivative work,” and if so, what contracts govern that outcome? Courts may look to cases like Crichton for guidance.

Drafting as Destiny

Perhaps the most striking lesson is temporal. The clause driving this lawsuit was negotiated in 1994—long before streaming, AI, or virtual reality. Yet in 2025, it is steering the fate of a major studio production. This underscores the durability of well-drafted agreements. Frozen rights provisions are not afterthoughts; they are legacy-defining tools.

For creators and estates, they preserve creative control and bargaining power. For studios, they represent long-tail risks that can derail expensive projects. The lesson is sobering: what seems like a minor clause today can become the focal point of litigation decades later.

The Future of IP Will Be Written in Contracts

The courtroom battle over The Pitt is about much more than one television series. It is about who controls creative legacies when copyright runs out of reach and contracts take over. The outcome may determine not just the future of ER’s intellectual property, but how the law treats reboots, revivals, and successors across industries.

And the implications extend far beyond Hollywood. In publishing, expect more estates to use frozen rights clauses to veto AI-assisted sequels or digital adaptations of classic works. In gaming, long-dormant franchises may be locked down—or unlocked—depending on how derivative rights were defined decades earlier. In virtual reality and metaverse projects, recasting old IP into immersive formats will test the boundaries of derivative work in ways courts have barely begun to imagine. And in AI training and outputs, frozen rights clauses may become the decisive lever of control where copyright doctrine remains unsettled.

The lesson is clear: drafting is destiny. The agreements negotiated today will govern tomorrow’s disputes, long after the technologies and platforms themselves have changed. For clients, the real question is not whether copyright law will keep pace with innovation—but whether their contracts will.