In this episode, Rusty and Austin explore the potential legal hurdles they might encounter if they were to venture into creating their own hospital drama.
In this episode, Rusty and Austin explore the potential legal hurdles they might encounter if they were to venture into creating their own hospital drama. With the television landscape already saturated with series like ER, Grey's Anatomy, House, and countless others, it begs the question: why are the creators of The Pitt facing legal scrutiny from the rights holders of ER, despite the abundance of similar shows? Rusty and Austin navigate the intricate world of intellectual property law to discern what sets a derivative work apart from a new addition. Tune in to understand the delicate balance between drawing inspiration and committing infringement.
No Infringement Intended, hosted by Rusty Close and Austin Padgett, is your go-to podcast for exploring the fascinating intersection of intellectual property and pop culture.
No Infringement Intended Podcast — Will I Get Sued if I Create Another Hospital Drama?
Hosts: Rusty Close and Austin Padgett
Recorded: April 16, 2025
Aired: July 17, 2025
Austin Padgett:
Come one and come all. Come on in. Welcome to No Infringement Intended. An intellectual property podcast of our law firm, Troutman Pepper Locke, hosted by the so-called bad boys of intellectual property, Rusty Close and me, Austin Padgett. While you're settling in for this episode, please make sure that you're subscribed. It's a great time to help us out and give us a 5-star review. A big shout-out to our kids who listen. I know my son has drummed up some new listeners amongst his peers, who have left 5-star reviews and I want to give those lads a specific shout-out. But everyone's a child of someone, so a more generalized shout-out to all our listeners.
The listenership continues to grow and the demand for a merch store is growing as well. If you need a tote bag with our faces on it, let us hear from you and we'll pass it along to the powers that be. We'll probably need to develop Rusty some specific logo, or tagline. If you have any ideas for those, listeners, keep them to yourself, because we don't want to get into a dispute with you when we're selling a bazillion dollars’ worth of bad boys of IP tote bags and beard oil. Rusty, what are we talking about today?
Rusty Close:
The beard oil will be a big hit. The bad boys are back, and it's time for another episode.
Before we get started today, I want to take your temperature. Do we feel we're safe to talk about mullets? Is anyone going to be offended if we talk about mullets? Is anyone going to hear us talking about mullets and think somebody might be offended?
Austin Padgett:
I think we're okay, Rusty. If we get any notes, it's going to be a really hard one to probably get all of this out, but let's go for it and see what happens. I think we're in good territory, where everyone's going to feel real good about how we discuss it.
Rusty Close:
I hope so. I hope we're all safe and secure talking about mullets. Is there any chance that our listeners don't know what a mullet is? We have to give a description of the classic business in the front, party in the back.
Austin Padgett:
Yeah. I should mention, there's a distinction here for my family and friends back in Florida growing up, because to me where I grew up, the first thing you think of is the mullet is a bottom feeding fish. They grow about a foot long, two to three pounds or so, a local delicacy where I grew up. I have people who’ll tell me that they can tell the difference between which rivers they came out of. Just something to think about.
Rusty Close:
What a skill set.
Austin Padgett:
Yeah. The local legend is that because we have sand bottoms and it's a bottom feeder that they don't have the impurities that a mud bottom dweller would have, but that with the – it flavors the flesh so that they can tell – did this come out of the black water, or another tributary along the way? They can tell those differences, because they just know the ground like the palm of their hand.
Rusty Close:
Unbelievable. I mean, it's well-established canon on this podcast that you grew up in Florida, on the panhandle, the Gulf. Not the French Riviera. I can't remember what else it's referred to as, but it's right on the tip of my tongue. If we went back through the Padgett family archives, would we find a school picture where the party in the back is sneaking out the sides of an Austin Padgett school picture?
Austin Padgett:
Not intentionally. If I got haircuts, it was – I had long hair in high school, so it was down to my shoulders, but it was long all over. No. But, I mean, where I grew up, I had a lot of friends, a lot of family that had the mullet. I would tell you, you know I'm a taxonomy guy. I like to put things in groupings. I would tell you that amongst my friends and I, we had an understanding that there are basically four types of mullets. There's the David Bowie, which is razor sharp glam, nothing's out of place. There's the Prince, which is high volume cascading down.
Rusty Close:
Gorgeous.
Austin Padgett:
Yeah. I mean, you've got the Mike Gundy, which is the later reference, but this is what I call it now, tight, clean sides, total waterfall in the back, though.
Rusty Close:
Do you need, for that version, I like it with a couple of lines cut on the side, so it's real nice and tight above the ears, but maybe some lines cut over it.
Austin Padgett:
Yeah. I mean, you can definitely do it. You don't have to have that. There are variations within all of these, but these are the high-level categories. Then the last of them, MacGyver, which is similarly tight on the sides, but has a tactical flair, or feathering in the back. You might also hear it being known as the Mel Gibson.
Rusty Close:
Mel Gibson from Lethal Weapon is a beautiful thing to behold. I always like to think of Andre Agassi, early Agassi had just an unbelievable mullet. Just, you see him out there playing Wimbledon and those locks are just flowing.
Austin Padgett:
Where in my grouping would you put Agassi's?
Rusty Close:
I think it's near that Mel Gibson category.
Austin Padgett:
Yeah. I put it in the Gibson-MacGyver category as well.
Rusty Close:
Yeah. Yeah, yeah, yeah.
Austin Padgett:
I think it's fair.
Rusty Close:
Early to mid-90s country music had some real, real sharp ones. Joe Diffie, an incredible mullet. Then, maybe the standard bearer, Billy Ray Cyrus.
Austin Padgett:
Absolutely.
Rusty Close:
I like to think about hockey, too, and I think they call it the flow, right? I think of early Jaromír Jágr, so you got a little bit of European influence in there as well. Incredible stuff. Then one that's like your Mel Gibson, George Clooney. He had a really good-looking mullet. Kind of clean. It's nothing like Andre Agassi, but real mid-80s vibe.
Austin Padgett:
I assume that when he was labeled most beautiful man in the world, most handsome man in the world, something like that, that they were actually referring to the mullet days.
Rusty Close:
Yeah. I mean, sexiest man alive in parentheses, when he had his facts of life mullet. Well, a few years after that, we're talking 1994 and the role that I think people look at for him that really turned him into a superstar, Dr. Doug Ross on ER. Did you, 1994, was Austin watching hospital dramas?
Austin Padgett:
ER was, see, that was part of Thursday nights must-see TV era. When I think of that era, I think of Friends and Seinfeld and Frasier. But I've got to tell you, Rusty, I missed a lot of that era on week night television, because I was either getting home later, like school stuff, track practice or something, or track meet, or would probably opt more for video games, or maybe even a movie at that time over television.
I've since caught up on a lot of it. Not ER, but I've watched a lot of these shows now. At the time, not so much. CBS on Thursday nights was running Walker, Texas Ranger. If I was going to watch TV on Thursdays, it would have been Walker. I probably watched that if anything, or a ballgame that was on that night. To answer your question, I do remember ER pumping that it was going to do a live show in the 1990s. I specifically remember making time to watch that, because I thought that would be a cool event.
Rusty Close:
You said to see it.
Austin Padgett:
That's right.
Rusty Close:
Well, it falls under must-see TV, so they had you there. It was correct branding.
Austin Padgett:
Absolutely.
Rusty Close:
ER, let's give a little history on it. It debuted in ’94. It ran for 15 seasons. It was created by Michael Crichton. Does that name mean anything to you?
Austin Padgett:
Just from, I was the nerdy kid. I'd see his name in bookstores, and I think I read Jurassic Park. I might have read it before the movie.
Rusty Close:
One of my favorite stories, were both of us, obviously, star athletes growing up. I remember riding the bus home from a basketball game. I was a sophomore. There was a junior who's reading Jurassic Park on the bus, speaking of nerdy. One of the seniors on the team, who I think – if you think about Ben Affleck's character in Dazed and Confused, O'Bannion, I think he stylized himself after that, or it's how he thought of himself. He says to the junior who's reading Jurassic Park, “Have you gotten to the part where the dinosaur goes, roar!” Everybody just looked at him like, “Would you just please go be quiet somewhere?” He thought it was hilarious.
Austin Padgett:
Oh, man. It's like a dead joke. Well, before it's time.
Rusty Close:
Well, before it's time.
Austin Padgett:
Oh, yeah.
Rusty Close:
Michael Crichton was an incredibly prolific and successful author. You mentioned Jurassic Park, Congo, Sphere, Andromeda Strain. In addition to being an author, he did his undergrad at Harvard, and as a backup plan in case being an author didn't work out, he went to med school at Harvard. After med school, he wrote a screenplay based on his experience working in the emergency room as a resident. That screenplay is what became, more or less, the pilot episode for ER.
ER is known as this groundbreaking show. It was a departure from the other types of shows that were on at the time. If you think about soap operas and things like that, where you have these dramatic zoom in on people's faces when they've got a decision to make, right? It’s this real stylized type of thing, ER was not exactly a documentary, but it was made more in that style, right? The doctors are using hospital lingo. They're not dumbing this down for the audience. They're cutting between, “Okay, I'm working on this patient. Now I'm over here working on this patient.” You don't necessarily know what happened to that first patient. It was this new type of television. One of the characters on ER played by Noah Wyle was John Carter. Dr. John Carter was based on Crichton himself, at least in the screenplay.
Austin Padgett:
Oh, interesting. Okay.
Rusty Close:
Yeah. He was a regular on the series for the first 11 seasons. He'd pop back in from time to time and was actually in the finale as well. He was, I think, the only person who was in the series premiere and the series finale. Again, the show ends in 2009. We're going to fast forward 16 years, 2025. We're now just a couple months ago, a new show called The Pitt debuts on Max, or HBO Max. I can't ever keep it straight. The Pitt, it is a – you can tell me if this sounds familiar, but it's a gritty, realistic hospital drama set in an emergency room, this time in Pittsburgh. It stars Noah Wyle. It's executive produced by John Wells, who was also the showrunner for ER. With all that in mind, would you get the sense that The Pitt is somehow related to ER?
Austin Padgett:
I can see where an argument starting to get crafted. You've got an emergency room, you've got realism, you've got a Midwestern city, and you've got some connection in staffing to the previous show.
Rusty Close:
There's a lot of overlap, let's say. If we made a Venn diagram of ER, we made a Venn diagram, one circle being ER, one circle being The Pitt. Well, Michael Crichton's estate, he had passed away several years ago, but his estate definitely thinks the shows are related. We like to try not to get bogged down in the legal here, but we're going to get a little bit bogged down. I'm going to try to keep it simple, because there is some nuance here, and a good bit of what we're going to talk about comes from the complaint that was filed by Crichton's estate against the people related to making The Pitt, okay?
It's not real debatable. I mean, these are things that can pretty easily be proved that happened. But if it gets too far away from that, we'll let you know. When Crichton signed his contract with the studio to do ER in 1994, there was language in the agreement, and there's a copy of this agreement attached to the complaint. That language has a state, they continually refer to it as frozen rights, a frozen rights provision. Is that something that they just made up for their purposes here, or is that a term that you see in agreements?
Austin Padgett:
A frozen something provision is actually relatively common across all sorts of different types of agreements. You see it on a lot of corporate type of agreements. But in this context, it depends on what you're freezing. You see it somewhat often on compensation for content creation deals, where there's no track record of the creator, or the type of project at issue. The parties try to create some flat fee structure a lot of times, but it's locked in, or it's frozen as of the time that they're negotiating that agreement. It saves the studio, or the distributing party from having to have continued renegotiations in light of the success of a project. There's that type of freezing. There's been a number of disputes arising from those types of arrangements. As you might expect, I think actually ER was one of them. Not this dispute, but very early on. What's the provision here of what rights are being frozen?
Rusty Close:
Yeah. In this situation, the provision said that any and all sequels, remakes, spinoffs, and/or other derivative works of ER shall be frozen with mutual agreement between Crichton and the production company and the studio.
Austin Padgett:
Okay. Yeah. This is a more talent-friendly provision.
Rusty Close:
Much more so. Yeah. I think Crichton insisted on it being in there.
Austin Padgett:
Yeah. Yeah. It acknowledges that there are rights involving the development of other shows that might come along, but they're frozen in time and it only thaws upon mutual agreement of the parties. This is going to be, as you would expect, a less common type of provision and it's probably associated with Crichton’s stature at the time.
Rusty Close:
Yeah. It seems 100%, this is post-Jurassic Park and he had enough weight to throw around to insist on this provision being included. I think, essentially, it says, “Hey, look. If we ever do anything related to ER, or derivative of ER, we won't do it, unless we all agree to do it.”
Austin Padgett:
It's interesting to think though about, because at this point in time for ER, Jurassic Park would have come out already. The IP around Jurassic Park and what that is and what it's really, if you think about that and how it might inform how you negotiate an agreement, keep in mind, film and television, particularly at this point in time are completely different animals. If you're thinking expansively as a creator and you go into the television world and you've done books and film, you have a pretty good sense of what the possibilities are for something spinning up.
Rusty Close:
In a lot of ways you can – we do this in contracts a lot. There's one approach you can take where you try to think through every potential path forward and account for it in the agreement, which can be a lot of wheel spinning and lead to a lot of work that's unnecessary. Or you can just say, “Hey, look. We'll all agree to work together on these things that might happen in the future,” if something like that comes up in the future.
Austin Padgett:
Yeah. Kicking the can down the road. The issue that you have, one, it's like, you'd like to have certainty going into something. But two, you don't know what something is going to become, so it’s countervailing. The thing you have to weigh is, okay, if we kick everything down the road, eventually, I'm going to come to a stack of cans and we've got to do something with it, or we're just going to continue to be in constant negotiations. Each party has the need for certainty in some items and then for flexibility on others.
Rusty Close:
Yeah. I mean, it's definitely a balance that you can lead to a lot of unnecessary work, or you can set yourself up for a lot of frustration down the road and balancing those two things. According to the complaint, and I think there's not much in dispute here, Noah Wyle, John Wells, the producer, and then the production company, they approached Crichton's widow, the representative of his estate with an idea to more or less reboot ER with John Carter, Noah Wyle’s character as the focus. It was, I think, essentially, just let's pick up this story. It's now 16 years later. The time is right to do this. There's a demand for it. People want to see it. Yeah, let's pick this up and go forward again.
The estate was open to the idea and they made clear that they'd be exercising those frozen rights from that original agreement. It seems like they tried and the parties, they just couldn't come to an agreement on what the terms would be on the reboot. Of course, money and credit and all of those things seem to be the big hold up, as you would imagine in a situation like this. While there was a plan for everyone to work together, as one of the beloved actresses and favorite characters of ours, one time said, “Things change, Mox”.
Austin Padgett:
So true.
Rusty Close:
They couldn't work anything out. Wyle, Wells, the production company, again, some allegation here, we don't know the exact truth, but they decided they were going to move forward with a series that was not related to ER. That series was The Pitt. Again, set in Pittsburgh, different doctor. It's not John Carter. It's Noah Wyle as Dr. Michael “Robby” Rabinovitch, right? Here we are. This happens and the Crichton estate says, “Wait a minute now. This doesn't feel right.” Are we clear up to this point on where everything stands?
Austin Padgett:
Yeah, for sure. Do we know anything about how far these negotiations with the estate got, or is that just an open question? We know that there was some approach and discussion, early discussion made.
Rusty Close:
The complaint includes some details. Again, this is one side of the story, but they were approached with some financial terms, some terms about created by, or based on the works of, things like that. I generally think it broke down over dollars, is what it seems like. Even after those talks broke down, again, in the complaint, there's – Crichton estate says that Wyle sent emails, “Hey, we really want this to happen.” Crichton’s widow responded. Wells sent emails trying to continue to move this along. The complaint doesn't specify at which point things broke down. It just says, they never got there.
Austin Padgett:
Got you. Okay. There were some, at least some specifics drawn up and there was at least the concept of like, this is what it would look like, and someone said, pass.
Rusty Close:
Yeah, that's exactly right. I mean, that seems to be the case. The discussions were more than just high level.
Austin Padgett:
Yeah. Got it.
Rusty Close:
I want to talk about, again, this is an IP podcast, right? We got to get our IP concepts worked in here. This idea of derivative works, right? The frozen rights clause, it dealt with spin offs, it dealt with remakes and sequels. The big one here, because this is The Pitt, this is a different doctor. This is set in Pittsburgh, right? The big one for me is, is this a derivative work of ER? Can you tell us a little bit about the concept of derivative works and then we'll get into, is this or is it not a derivative work?
Austin Padgett:
Yeah. It's interesting that this pops up in the complaint, because we're talking about a contractual term. Usually in contractual terms, they either have defined meetings within the contract, and that's usually what you go with, the definition of a word that the parties agree to, or you go with their common understanding. You see courts getting into dictionaries. Sometimes dictionaries at the time of the contract, so that people can understand what were the parties’ intentions were in getting into this agreement.
What we're talking about is specifically a derivative as it is in that contract. The strange thing is that a derivative work is also term of art in copyright law. In copyright, I think it's going to be more or less the same type of thing that a derivative work is essentially, I mean, the ways to find this, one that's based upon a preexisting work. Then the Copyright Office, or the Copyright Act tells you things, it's like translations, it's musical arrangements, it's a motion picture version. Taking Jurassic Park from a book to a movie, that's the creation of a derivative work. Or anything else where they say, where a work is recast, transformed, or adapted. You have these big concepts and words where you – the concept is you're working with prior material and you're doing something new with it.
Rusty Close:
That makes a lot of sense. You can see if you're Crichton’s estate, well, you are working from something that previously existed, and you are making something new based on that previously existing work. Then on the other hand, if we think about hospital shows, if we think about this through that specific lens, you can go back to M*A*S*H* in the 70s and 80s, St. Elsewhere, ER, and then moving forward from ER, you've got Grey's Anatomy and House and Scrubs. I mean, as far as I know, and I assume as far as you know, there's no allegations between any of these shows that other of the shows were derivative works, right? It's this acknowledgement that, well, yeah, it's a hospital show. We're a hospital show.
Austin Padgett:
While we're paying homage, I mean, we got to mention, Doogie Howser.
Rusty Close:
Yes, sorry, I can't believe I left it off.
Austin Padgett:
That was running on the same time as Wonder Years, which is my favorite show, late 80s, early 90s. You had an actual show called Emergency! from the 1970s, I think with an exclamation point in it. I don't know if it was actually –
Rusty Close:
George Clooney himself was in a show called E/R, E slash R.
Austin Padgett:
Okay. I think everyone listening is jumping out of their skin, yelling at us, General Hospital, the long running soap opera. I'm giving shout outs today. I want to give a special shout out to Dr. Quinn, Medicine Woman. They're not a typical hospital show, really paved the way for a lot of shows. In a sense, it reminds me of The Pitt and how it includes a lot of social issues and big themes in its episodes. Shout out.
Rusty Close:
Unbelievable. Yeah. I feel bad. I left those off my list, for sure. We think about all of these different shows, and as far as we know, none of them have made allegations against the others. Is there some line that you cross, where on the one side of this Rubicon, you're just another show set in a hospital. On the other side, you're a derivative work as is understood in the law of some hospital show that came before you. I mean, is there any black and white line there?
Austin Padgett:
There's really not. I mean, the black and white lines are, okay, the two territories you just set out. I've got a clear derivative. Maybe it's through branding. It's ER: Jacksonville. What a show that would be. It's using characters, the same characters from ER. You've seen these spin off shows where they take a character that had the beloved character, Better Call Saul. You spin it up into this new series to continue telling a story from a different vantage point. You use the past events, or you're somehow in the ER universe. These are all protectable, fixed elements.
On the other side, there's a territory where you've got Grey's Anatomy here. You've got brand new characters, new storylines, different tone, different structure. At some point, like you said, there's a line where you cross, where you were in one territory, or you're in one and you cross over to the other. Where that is going to be heavily factually dependent. There's no perfect answer for this. It's like anything in law, we look at other cases where the decisions were made. We look at the intentions of the parties and the facts at issue and try to come up with some fair concept that, did they do enough? I'm looking at it: did they do enough to take the shortcut of using ER and what that means to fans and what it does in the creative process? Did they use that and all the benefits that gives to create this new thing? For me, that's the fairness question of what a derivative is. Did they get the benefit of the universe and the renown and all that?
Rusty Close:
Yeah. Because we've got these court filings, we see each side's view on whether this is, or isn't a derivative work. I don't want to go through every single thing on here, but from the perspective of Crichton’s estate, both series are based in the emergency room of a hospital in a large urban city, okay. So are a lot of other shows, right? Both pilots begin in the early morning and take place over the course of the single day.
Austin Padgett:
Remind me, is that the way ER was set up? The Pitt, I've only watched a couple of episodes, but it has like, hour one, it's like 24, the old show 24, hour one, hour two. It's following a sequence.
Rusty Close:
That's exactly right. The nuance there is that the ER pilot takes place over the course of a single day. The rest of the series is not structured the same way. That's one of the things that Pitt side of the equation says, “No, no. We're different because of this. Our entire series is, it's one shift.” Spoiler alert for, do we have to do spoiler alerts on this podcast? For those who don't know, it takes place over the course of one shift.
Austin Padgett:
Yeah. That is a spoiler, I think, for the fans out there.
Rusty Close:
The main character's co-worker friend in both series is a roguish bad boy, patterned after yourself, I'm sure.
Austin Padgett:
You don't see the word roguish very often in complaints. I love that.
Rusty Close:
It's good. Yeah. Let's see. Both pilots have hospital staff members with suicidal tendencies. Again, they're talking specifically, they being the Crichton estate about the pilot and a lot of these allegations of why they're the same. There was a motion to dismiss this whole thing. We get the perspective of The Pitt creators, Noah Wyle, that side of the equation. Like I said, they say The Pitt is entirely different from ER. It involves different names and iconography, different plots, different characters, different themes, different setting, different pace, and a different approach to music and lighting. Easy to see, while I see it from their side and I see it from their side, right? I mean, both of those things make sense. If based on your experience, and if you have to come down on one side or the other, what's more in-line in terms of what you think of as a legally derivative work?
Austin Padgett:
Oh, man. This is tough. I don't know that I have a good take on this one yet, and maybe need to have a sabbatical, like a fully paid sabbatical so I can go watch hospital shows, because it's not a genre that I'm just deep into. Let me work out my ideas and where I'm wrestling with this with you. On the one hand, I can see how this is the dispute that started when the plan was to develop something in the ER universe. Doesn't pan out. So, the creators may have taken the core ideas and try to go a different direction with it. But to keep the show as a, what would you call it, a spiritual successor to ER, but without the overt benefit of the ER universe. Like I mentioned before, that would have some benefit as a shortcut to establishing a new show. It's almost like in trademark law, where –
Rusty Close:
You're getting the goodwill, right?
Austin Padgett:
The goodwill associated. The stuff that people like. We can definitely get new viewers. But if you loved ER, you've got to tune into the next show. This new show. That's a real benefit that has a link to the original show. I question whether a show that follows a more general ethos, or as a tip of the hat is a derivative, because I think there's a place for that type of homage show, or at least high level.
This is why you see the similarities that they're listing with granularity in the complaint. That's an important point to try to build this type of case. You can't go in and just say, look, hospital show, hospital show. We've got to get down to some level of granularity and specificity that shows this is a definite, this is essentially a copy. They're doing everything they can to benefit from the ER universe that was created, and here they are now.
The trap, I think, though, is that a show like ER that's based on realism by its nature is rooted in facts. Facts are not really protectable in this space. For example, you've got, if it's a common truth that there are some people that go to the ER often enough, that they're recognized people there, that seems to me more of a fact of hospital life. Then, it may be ER was the first to bring it up and point it out. If that's a recognized fact, I don't know that you can stop anyone from doing – I say, I don't know – I know you can't stop anyone from doing that. We really have to stack up these specificity levels with a long list. You got to have a long list of stuff to show. Clearly, this is what they're trying to do. Everybody would understand.
That's another thing, I think, they need to show is that everybody has to understand, this is ER. We're just on Pittsburgh over here, baby. We got this, one of the stars of the prior show. We got a show runner that’s a producer. We're using the same type of lingo and language. I think that's what they're trying to build up is that everyone would know. To me, that's an important part of it is that that's the benefit, the payoff to be a derivative. You've got that type of thing, so facts.
You use certain storytelling techniques that become an iconic piece of a show like ER and how it tells stories in an emergency room. I think that can actually become defined enough that it is a protectable type of thing, where people will be like, “Man, that looks just like ER. Clearly, they're just trying to be ER.” Oh, and maybe they understand from other stuff that's happening in the show, this is just ER in Pittsburgh. They just didn't call it ER. That answered your question. I'd lean probably more towards the defense, where it can show all these new and distinct elements. I'm just not associated with these shows enough. I don't know ER, so maybe that's part of my bias is that I look at them, looks like it could be Grey's Anatomy. I mean, I didn't watch that show either.
Also, here's where I understand the plaintiff's side is that they need the ability to litigate, to explore more about the creation of the show and what's going on in the background, what's being said about it out there. Those facts may already be known between the parties, or at least enough for the court to dismiss the case. The important lesson I'm taking away from this is that how do you approach early negotiations? Should we have even gone and asked? You have to think about that now, because if the answer is no, what do we do then? Are we safe enough to go and do what we want to do creatively and try to accomplish this thing without causing a stir like this? Maybe there's just no way to do it without causing a stir. That's just part of the risk you take.
We deal with that on virtually every front. I'm not just a copyrighter. It's also in branding. Like you see another market out there. Should we just go and ask these people for permission? Well, maybe if we did, we’d get what we want. But maybe if we don't, it turns into something, because these people may have never been aware of us anyway. But it goes back to the discussion we were having in that episode, the special episode we did about the social network, where the plaintiffs are talking about the appearances and fairness of all this, but the defendant’s talking about the exacting requirements of the legal claim.
Rusty Close:
No, I think you're exactly right. I mean, I think that is a good question. If the people associated with The Pitt had originally set out to make The Pitt, a new show starring Noah Wyle, executive produced by John Wells, set in an emergency room in Pittsburgh. If that was what they were going to do from the outset and they never approached Crichton’s estate, would Crichton’s estate come along and go, “Whoa, whoa. Derivative work here.” Or, does the fact that they approached them, approach the estate with the idea of rebooting and modernizing ER and then pivoting away and going with The Pitt instead, it certainly plays into the discussion and what I think will ultimately happen and what I think is probably ultimately going to be a settlement in some retroactive acknowledgement of Crichton’s involvement and all of those things is if you think about how this plays out.
Austin Padgett:
Yeah, for sure. To your point, I think if there was never that discussion, I think this is just another show in the pantheon of hospital dramas, or whatever we might call the category. It really seems that that discussion and that initial planning and concept is what gave rise to this dispute here.
Rusty Close:
Look, we can line the shows up and say, what overlaps, what doesn't overlap and do all of those things. Going back to that trademark idea of goodwill, I think there's plenty of examples in media and folks writing about the show referring to it as ER 2.0. I think people who are familiar with both certainly see the similarities and the parallels. Crichton’s estate's complaint included the text from this joint statement once The Pitt was announced that said, “We're thankful to Max for giving us this opportunity to return to the world of urban medicine. In the decade and a half, since we last visited their stories, we're thrilled to be able to return to this world.” It's almost like they tattled on themselves a little bit saying, “Hey, we have done this before, and we're going to reboot it.” Maybe that's not the word they would use. Certainly not, in in retrospect.
Austin Padgett:
That's where you get at. Maybe the court just allows us to go forward, so that we can see –
Rusty Close:
I should say, they did, right? The motion to dismiss was filed, and the court is allowing it to go forward. As of this recording, it's still playing out.
Austin Padgett:
Yeah. I mean, that's what I would expect is that there's enough here to say, there’s a potential claim here. We need to find out more about the creation of this thing, because who knows what emails are in the background, or statements made? It's just like any project, where you've had this before, where the company, you get a client, you find out more about the background of a product, somebody else shows up and says, it’s an infringement, and then you find out, oh, yeah, well, we sent that to a manufacturer and said, “Can you make something like this?” There's emails and communications in the background that are like, oh, man, I thought we had a really good defense, until your intentions became very clear and we're written down and memorialized. Let's figure out another path to resolving this dispute.
Rusty Close:
I mentioned earlier, there was some nuance here. They didn't go to court and say, you've created a derivative work, and that's my cause of action. They actually went to court and said, this is a breach of contract case, right? Based on the language of that frozen rights clause, I think they'll have to show that it was a derivative work. It's a breach of contract if we can show it's a derivative work. Another one, I think was unfair dealing, or something along those lines. They're not making actual IP related claims, as far as their cause of action in the case.
Austin Padgett:
Yeah. I mean, it's just like, most of our cases come down to, is there a contract? What does it say? Can we fix this by just the parties agreeing to something and perfectly in writing?
Rusty Close:
Yeah. Can we fix it with money, generally? One last question I've got, if you're a copyright holder, how can this concept of derivative works, can it really serve as much of a tool for you? Or is it like we always say, you're so much better off defining everything in a contract as related to that work that you created?
Austin Padgett:
Oh, I mean, it's very powerful. I mean, the reason it's dealt with in contracts is because it's a very real thing. Let's get out of ER world and go to the Jurassic Park world and think about all of the derivative and other storylines and other characters and other just merchandise, all these things that are developed out of this initial book that Crighton wrote, because he wrote that book. The second he wrote that book, he has these rights. Now, he's gone and licensed them and exploited them. But if somebody had gone and taken that book and developed their own story and maybe they called it something different, but they had access and it was enough substantial similarity, even though they're outside of the book world and they made a film, there's still – because that would have been a derivative right that he would have had. There would be infringement there. That's the reason it's so important to get these things into agreements, because that's what you’re licensing out is one of these rights that you have under the Copyright Act.
Rusty Close:
It's so hard to think through. One of the thoughts I had was, okay, we're not Noah Wyle, we're not John Wells. You've made clear that you didn't watch ER. But if you came back from your sabbatical, you've watched all 15 seasons, 300-plus episodes, and you and I put our heads together and say, we want to do a modernized, post-COVID, post-pandemic hospital show, and we want to set it in an ER. We're going to put it in Pittsburgh. We'd love for Noah Wyle to be involved. Does anybody come after us and say, “Whoa, that's a derivative work of ER.”
Austin Padgett:
Yeah. I mean, first we're going to be really careful about what we say about what this thing is.
Rusty Close:
Yes. Yes.
Austin Padgett:
We're not going to return to anything.
Rusty Close:
We're not returning to anything.
Austin Padgett:
This is a brand-new show made by two guys who know zero about hospital life. We gutted it out from launching a bunch of television. We won't say that either, because that shows that we had access to the work at issue. We're safe, as long as we're careful about, and we've done this, too, you and I, where we have what's called the white room in a sense that we're going to develop this. Maybe it's based on our knowledge, and some of that's informed generally by hospital shows generally, because I took this nice, long sabbatical. The firm was very kind and allowed me to watch hospital shows all year long. We're not specifically sitting down with a script, or with some outline from another show and saying, that was successful. We need to follow this type of flow. We need to do X, Y, and Z.
I think that we're just trying to find, if the general facts versus the expression that we often get to and copyright types of cases, I think we're going to be in good shape. We're going to mind what we say about stuff. We're going to mind how we develop it. We're not going to write emails to one another and say, oh, we should make it look exactly like that live episode from ER in 1997, or whatever.
Rusty Close:
We're only using burner phones.
Austin Padgett:
That's right. It's all doable, because we're just at the high level. Those are generally fine places to be. It's the specifics and the intentions of the parties that become really problematic. I haven't read the decision, but I assume that's the reason the court allowed this to move forward.
Rusty Close:
Yeah, I think so. I mean, the facts themselves are so important to understand the overall situation. I think here, just like in some of our previous episodes about the graffiti and the things that happened there, it's the specific things that happened and led to the circumstances, they play a role. You can't decide these things devoid of context, essentially. It's always going to play a part.
Austin Padgett:
Yeah. I think the most important thing is procedurally for a motion to dismiss, which is what the folks at The Pitt were trying to get and say, there's not even a claim here. That's what you have to show is where that is procedurally is that the court has to look at everything favorable to the plaintiff. They have to say, “I'm going to assume everything that you've written in your complaint is true, whether it is or not, whether you can show it or not.” Have you done enough to at least state a claim? Now, that doesn't mean you win the case, or anything like that. It just allows you to go forward and get into the discovery period, where you can go and take a look at documents, you can ask questions of people, and you can build that case. Then we'll test it out with actual facts later down the road and see if your theories played out the way you thought they were.
The only question there is, is there enough where you can get into that next phase? Is there enough where there's a possible question that can be answered by the court here? Or is it just on the face of your complaint, even assuming everything you said was right, it's just not enough?
Rusty Close:
Right. Well, if we started with a question here, I'm not sure we started from the top, but if the idea was, Austin, can you and I develop our own hospital drama without getting in any trouble and stepping on anyone's toes, I think we came to an answer on that today.
Austin Padgett:
I think, like this podcast, it would be a smash success.
Rusty Close:
There is no question about that.
Austin Padgett:
That's right. Well, thanks, everyone, for listening. Hope you'll return and give a listen to all our older podcasts. Be sure to like and subscribe. If you'd like, give us a five-star rating to help everyone know what we're up to over here at No Infringement Intended.
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