The estate of the best-selling author, which has intellectual property rights to ER, and the creators of the new hit TV show are waging a legal battle over whether it’s a stealth reboot.
In February 2020, the actor Noah Wyle decided the moment was ripe to bring back his most successful television character, Dr John Carter from the hospital drama ER.
Wyle wrote an email to John Wells, who had served as the showrunner on ER, to propose a “character study in the vein of LOGAN, PICARD and JOKER”. He described his idea for the show as “a 12-episode Hulu limited series, where we take another look at the guy who showed us the world the first time,” adding: “Darker and grittier. Aged. But still him.”
“Get a few band members together,” he suggested to Wells, “and write a beautiful new song in an old and familiar key”.
From the kernel of that idea emerged the hit HBO Max hospital drama The Pitt, which was nominated for 13 Emmys this year, winning three, including for outstanding drama series and outstanding lead actor for Wyle himself.
Wyle’s beautiful new song was played not in an old and familiar key, however, but transposed to a new one. The Pitt of the title refers to Pittsburgh, where the show is set instead of Chicago, like ER. And in place of Carter, Wyle plays Dr. Michael Robinavitch, also known as Dr. Robby.
Wyle’s original vision was nearly realised. But talks over a sequel to ER broke down in disagreements between Warner Bros. Television and the estate of Michael Crichton, the bestselling author, who wrote the screenplay for the ER pilot. Negotiations with Crichton’s widow, Sherri Crichton, came so close that Warner Bros. Television had drafted a news release announcing the return of the show.
“Noah Wyle will reprise his iconic role,” read the announcement, which was obtained by The New York Times, in a “straight-to-series order to ER sequel,” with Sherri Crichton as an executive producer. The fourth version of the release, “ER Draft v04,” still needed quotes from the key players and used the code name “Beam” for the new Max streaming service that Warner’s chief executive, David Zaslav, was about to announce.
But the news release, like the ER sequel it heralded, would never see the light of day.
Sherri Crichton has since sued Warner Bros., Wyle, Wells and the creator and showrunner R. Scott Gemmill in a California state court, asserting that The Pitt is the ER reboot they negotiated in a disguise about as tricky as a pair of Groucho glasses.
“I am standing up for Michael Crichton and his legacy because he cannot stand for himself,” Sherri Crichton said in written answers to questions from the Times.
The team behind The Pitt contends that not just the location and the name of the protagonist changed but everything from the lighting to the music to the pacing of the show. “When I was creating The Pitt, I intentionally made it different than ER (and every other medical drama I am aware of) in as many ways possible,” Gemmill said in a statement to the court.
“My goal was to do something completely new,” he said, a “medical drama that had never been done before, about critical issues plaguing our medical system and society at large, particularly after the Covid-19 pandemic”.
The lawsuit might have been a footnote in television history if The Pitt had quietly slipped off the carousels on Roku televisions across the country. Now, it looms ever larger between the Emmy wins and a second season of the show announced for January. And with contemporary culture clotted with remakes, the question of who controls the rights to reboots, sequels and spinoffs takes on ever greater significance.
The court filings reveal a drama worthy of a screenplay, with a middle-aged actor looking to relive his glory days and a widow determined to keep her late husband’s memory – and lucrative intellectual property – alive.
The birth of ER
Michael Crichton cut an unusually prominent figure for a novelist in Hollywood. He stood 6 feet 9 inches, and his good looks earned him a spot on People’s list of the sexiest people alive. But it was the popularity of his books that stood out the most. Crichton’s 29 novels have sold more than 250 million copies. Of those, 13 were turned into films. He also directed movies, like the robots-run-amok adventure Westworld.
Crichton had started writing novels under pseudonyms during medical school to help pay the bills. The first thriller he wrote under his own name was The Andromeda Strain, about a contagion from outer space. It became a movie in 1971.
During the filming of The Andromeda Strain, he was shown around the Universal Studios lot by a young director named Steven Spielberg, a relationship that would prove significant.
In 1974, Crichton wrote a 180-page screenplay called Emergency Ward, inspired by his experiences as a medical intern. The movie took place over 24 hours in an emergency room. Fifteen years later, his friend from the Universal lot, Spielberg, wanted to turn Emergency Ward into a television series through his production company, Amblin Entertainment.
The emergency-room drama sat on the back burner for a spell as Spielberg first took up Crichton’s novel about dinosaurs brought back to life through DNA found in ancient mosquitoes. Jurassic Park would become a global hit.
In early 1993, Spielberg’s production company returned to the project. It helped set up a meeting between Crichton and Wells, a television writer coming off four years on the award-winning Vietnam hospital show China Beach. The two men hit it off over lunch at the Santa Monica outpost of the Ivy, a Los Angeles institution, and decided to pursue the project.
“We agreed that we would never talk down to the audience, that we would respect the audience’s intelligence and that the medical dialogue would never be dumbed down,” Wells later wrote in an email to Sherri Crichton.
They set about reworking the screenplay. In Wells’ telling, every network passed on the show twice. “The complaints were all similar – it moved too quickly, the medical dialogue was impenetrable, patients died,” he wrote. Finally, NBC agreed to shoot a pilot without offering much hope that it would grow into a series.
When it came time to cast the hospital show, a handsome young actor named Noah Wyle tried out for the part of a medical student on his first day in the emergency room, the character most closely based on Crichton. Wyle felt a touch intimidated as he watched an older actor practising tai chi in a corner of the room. “He’s gonna be all relaxed and Zen, nail it, and I’m gonna spin out of control and blow it,” Wyle later recounted.
In strolled Michael Crichton. He whispered a story to Wyle about a potter who had lived in Tibet 500 years earlier. “He decided to take me out of my head,” Wyle wrote of the experience. “I laughed out loud, walked in the room and got my job.”
ER debuted in the fall of 1994 and became a sensation, part of NBC’s Thursday “must-see TV” lineup with Friends and Seinfeld. The show made stars of George Clooney and Julianna Margulies. And it made hundreds of millions of dollars for Michael Crichton and Spielberg’s Amblin Entertainment.
Wells would later say in an email to Sherri Crichton that he “earned less than half of what either of them made,” despite working on ER for more than a decade and a half. “That’s not a complaint, it’s the deal I made,” Wells wrote.
The show ran for 15 years, outliving Michael Crichton. Wyle stayed for 11 full seasons, by far the biggest role of his career in terms of both longevity and cultural impact.
The will
Michael Crichton had four ex-wives and a teenage daughter from a previous marriage when he began dating Sherri Alexander, a confident blonde with wide-set eyes and a big smile who had appeared on the soap opera As the World Turns. The couple married in front of a waterfall on the Hawaiian island of Kauai in 2005; three years later, Michael Crichton died unexpectedly at 66 while undergoing cancer treatments.
The grieving Sherri Crichton, then 44, was six months pregnant with their son. Michael Crichton had not yet updated his will, which made no mention of their unborn child.
Sherri Crichton sued to have their son declared an “omitted heir”. Lawyers for Michael Crichton’s daughter asked for the court to remove Sherri Crichton as a co-executor of the estate because of the “irreconcilable” conflict of interest over both her son’s needs and those of the trust.
Sherri Crichton also filed a claim for US$7 million ($11.7m) from the estate that she said she was entitled to under the couple’s prenuptial agreement, which stipulated that she receive US$1m a year for nine years from her husband. Sherri Crichton prevailed in court.
The details of the trust and the division among beneficiaries remain private, but Sherri Crichton became CEO of CrichtonSun, a film and television production company that also oversees Michael Crichton’s archive.
Far from passively collecting royalties on his books and residuals from his film and television shows, Sherri Crichton took an active hand in shepherding his legacy.
Two novels, Pirate Latitudes and Dragon Teeth, were published posthumously. Michael Crichton had another No. 1 bestseller last year in Eruption, an incomplete manuscript finished by a fellow bestselling author, James Patterson. A second unfinished work, Micro, was completed by Richard Preston, who has written about infectious diseases and bioterrorism. Sherri Crichton also commissioned an authorised sequel to The Andromeda Strain. The latest instalment in the Jurassic Park film franchise has earned more than US$862m at the global box office this summer.
In 2016, HBO aired a new version of Westworld, a big-budget series about sentient androids based on the 1973 film, which Michael Crichton had written as well as directed. Sherri Crichton wanted her husband to get credit as the creator of Westworld. She was denied, which left her simmering.
On Thanksgiving eve in 2022, Sherri Crichton received a phone call from Wells, who was reaching out to let her know that there would be a story in the Hollywood trade publication Deadline about an ER reboot.
“I was shocked. Although development had clearly begun long before, no one had mentioned anything to me,” Sherri Crichton later said in her declaration to the court. “Even Mr. Wells was not asking for my opinion or approval. He was simply giving me a heads-up about an imminent press announcement.”
Crichton immediately called her literary manager and her lawyer. They dug up the old contracts and found what they believed was an unusual and powerful provision.
The clause stated: “Any and all publishing relating to ER, any and all theatrical releases, any and all sequels, remakes, spinoffs and/or other derivative works (including electronic media, interactive and the like) shall be frozen, with mutual agreement between Crichton, Amblin and Warner Bros. being necessary in order to move forward in any of these categories.”
In their understanding, this so-called frozen-rights provision gave them veto power over any reboot of the show. They did not agree to the sequel.
Wyle wrote impassioned messages to Sherri Crichton in an effort to win her approval (including his anecdote about Michael Crichton and the Tibetan potter at his audition). “The complexities of your situation have been explained to me, and I was appalled at the examples of disrespect shown you, Michael and the estate on other properties,” he wrote to her in January 2023. “I admire, respect and back your fight to protect his legacy and authorship.”
Wells described to Sherri Crichton the show they planned to make: “A 12-hour shift. An hour an episode that spills over into a 14-hour shift. Michael’s original screenplay (our pilot episode) was a day in the life of the ER and Mark Greene (Anthony Edwards). Thirty years later, it was to be a 14-hour shift for John Carter (Noah Wyle), now the attending physician in the ER.”
It is the same real-time approach familiar to anyone who has watched The Pitt.
The messages filed in the court case are raw and full of feeling and do not suggest that the team working on the reboot expected that they would be aired in a lawsuit. “I loved Michael, Sherri, he was my friend,” Wells wrote at one point. “The way this all went down has left me deeply saddened.”
Brett Paul, the president of Warner Bros. Television, said in a statement to the court that Sherri Crichton’s representatives had “demanded many millions of dollars,” payment for a first season whether the show was made or not and the right to reject showrunners as well as international licensees.
“I was surprised by the hostile approach taken by her representatives, and their resistance to closing what would have been a very lucrative deal for Mrs. Crichton,” Paul told the court.
Sherri Crichton’s representatives say she does not personally receive any money from the rights to ER.
She “will not see a dollar out of this lawsuit,” said Robert Klieger, a lawyer for Sherri Crichton. “Any recovery will go entirely to Michael’s children.”
After months of negotiation, Wells offered a personal guarantee of US$5m to the estate if Michael Crichton did not receive the coveted “created by” credit. (Standard practice in the business is that creators receive significantly more compensation than writers.) But according to the complaint, Warner Bros. Television sent a new agreement at 5.30pm on April 11, 2023, demanding that this “best and final” version be signed that night. Sherri Crichton did not agree to the terms in time.
Pivoting to The Pitt
The next day was a significant one for David Zaslav, one he would call “our rendezvous with destiny”. After the US$43 billion merger of Discovery and WarnerMedia in 2022, he headed up the new entity, which included HBO, the Discovery Channel, CNN and the storied Warner Bros. film and television divisions.
Now Zaslav had a plan to take on the streaming competition by combining the reality-television-heavy Discovery slate with the scripted shows in the HBO library in one service.
When Sherri Crichton baulked, she inadvertently robbed the company of the cherry on top of its new streamer announcement, to go with a new Harry Potter television series and a second Game of Thrones spinoff.
After one more brief round of negotiations that fall, the project was dead. Yet while the ER reboot was gone, a similar show was proceeding without the Crichton estate. The Pitt was announced in March 2024. The Crichton camp felt deceived and betrayed.
On August 27, 2024, before the show had aired, the Crichtons’ entity Roadrunner JMTC filed a complaint in Superior Court in Los Angeles, claiming breach of contract. In high-flown language with echoes of Mark Antony’s funeral oration in Shakespeare’s Julius Caesar, the complaint says: “This time, however, WBTV seeks not simply to bury Crichton in the end credits, but instead to erase him altogether from one of his signature creations.”
On November 4, the defendants asked the court to dismiss the complaint, citing their constitutional free speech rights and arguing that The Pitt is not a derivative work of ER. They emphasised that the new series is about the post-Covid world, reminding the judge that it deals with events that arose after Michael Crichton’s death.
The pilot of ER was shot in an unusually dark palette of colours and featured music cues that by the standard of the time were cool but seem intrusive today. The hospital in The Pitt is brightly lit, almost glaringly white. There is little in the way of a soundtrack, usually just the beeping of heart monitors, the clatter of gurneys and the bickering of the doctors.
The whole season is a single 15-hour shift, which brings an immediacy to the cases, many of which end in death.
The Pitt includes contemporary social ills like (spoilers ahead) pills laced with fentanyl, a mass shooting at a concert and the damage wrought to the health care system by the pandemic.
Rewatching ER through the lens of the lawsuit – as a jury might be asked to – can be a strange experience. Is the struggle over whether to put a dying elderly patient on a ventilator a distinct plot point (this would support Team Crichton) or an everyday tragedy in a large urban hospital (Team Pitt)?
“The Pitt has no connection to ER – it does not use ER’s intellectual property, characters, plot, setting or narrative pacing,” the defendants said. “While both series are medical dramas set in a hospital, this concept is hardly unique.” They name-checked Grey’s Anatomy, Chicago Med, House and The Good Doctor.
Clooney was even in a hospital show set in Chicago called E/R before he took up the stethoscope for ER, which itself had been moved from Boston because it felt too similar to the 1980s hospital show St. Elsewhere.
‘It didn’t need to turn acrimonious’
The first round in court went to the Crichton estate. The defendants sought to have the suit dismissed under California’s anti-SLAPP law, which is intended to quickly dismiss lawsuits that seek to chill free speech. The judge rejected the request in February. Warner Bros. is appealing the decision.
“The Pitt is simply not ER, a Warner spokesperson wrote in an emailed statement. “The Crichton estate’s lawsuit is a baseless attack on creative freedom and First Amendment values.”
If the case goes to trial, it could become an unusual spectacle, with the potential drama of depositions by Wyle and the show’s producers, a public airing of emails and text messages meant to be private and potentially even Zaslav’s taking the witness stand.
“This taints the legacy, and it shouldn’t have,” Wyle told Variety this year about the case. “At one point, this could have been a partnership. And when it wasn’t a partnership, it didn’t need to turn acrimonious.” (Wyle declined to comment to the Times.)
If the case moves forward, it might not just be embarrassing messages that come to light. To determine what kind of damages the studio might pay, questions about its profitability and business model could also be laid bare, including the kind of information that companies have tried to keep private as they negotiate less lucrative packages for creators.
The plaintiffs say in their filings that Warner Bros. made at least US$3.5b from ER. Peter Nelson, a lawyer for Sherri Crichton, said the author’s estate had earned around US$800,000 in so-called back end for each episode, which would total more than US$250m.
The case “could serve as a model for how to figure out how much things are worth in the streaming space,” said Jennifer Porst, a professor of media industry studies at Emory University in Atlanta.
Sherri Crichton does not sound like she’s looking to settle. “I will not stand by and watch my husband’s work be taken from him without providing him any credit or compensation,” she said. She said she was fighting for all creators, including those who could not afford to take on a studio.
“They’re not going to be in a position where they have to wave the white flag at some point because they don’t have the resources to continue fighting,” said Klieger, Sherri Crichton’s lawyer, in an interview. “There are very, very, very few writers, directors, talent that can say that.”
Viewers of the new show may have benefited from the fact that The Pitt tried not to be a spinoff, Porst said. Remakes often can’t help but lapse into the imitative, a kind of tribute band version of the original, freckled with reunions and special guest spots.
If it had been an ER reboot, “you drag George Clooney back again to make a quippy one-liner,” she said. Instead, she said, “it allowed for new talent to shine”.
This article originally appeared in The New York Times.
Written by: Nicholas Kulish
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