Is my favorite new TV show this year a ripoff?

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28:07Welcome back to the show.

28:12So when I started watching The Pit, as a person who totally skipped ER, one of the things that confused me was The Pit's starring actor, the guy who plays Dr. Rabinovich. I was confused because the actor was clearly in his mid-50s, a tremendous performer. And I just thought, how has this guy never been in anything? And also, how did he finally get this big role? It turns out that that actor, Noah Wiley, is famous to lots of other people because he was one of ER's main characters. And Noah Wiley isn't just the star of The Pit. He was perhaps the driving force for getting the show on the air at all.

28:49Because for Noah Wiley, The Pit was an opportunity to re-energize, a Hollywood career that had cooled somewhat. So to go back a step, when ER came out, it made stars of a couple people. George Clooney became a big star, who we all know is a movie star, but ER was really his thing. And Julianna Margulies, you know, went on to be the good wife. And Noah Wiley, you know, who was younger, stuck with the show a lot longer. I think he did 11 full seasons and then some additional appearances. So for him, ER was like a real job for more than a decade. He didn't jump straight into Matinee Idol. He did some other stuff.

29:33He played Steve Jobs in a very well-received made-for-TV movie about the tech industry. But I think it's pretty clear for him that up until The Pit, ER was the pinnacle of his success. Right. And so that's how we find ourselves in February 2020 with Noah Wiley saying, hey, I know what the world needs. The world needs a television show called Carter about my most famous character, Dr. John Carter. At the time, he name-checks these things, like Logan. You remember the movie Logan? As I live and breathe, the Wolverine, and he's a junkie now. Who the fuck are you? You know, you got some buckshot in your door.

30:23Oh, it was so good. It was like Logan Wolverine from X-Men. But they were like, we're just going to make a movie about him, and it's going to be darker and sad. I loved Logan. It was cool. So he's like, we need a Logan for Dr. John Carter. So the grizzle guy, the white in the beard, is a feature, not a bug. Okay. And of course he wants this. Like, wouldn't you like to go back to your most famous role that everybody loved you for? And what does it look like? He's like sending emails. Is he trying to write the scripts? Like what's happening? He's emailing people like John Wells, who worked on ER a lot in some of the later seasons.

30:59And so, yeah, so there's this like, let's get the band back together and let's do an ER again, but coincidentally focused on my character. Which sounds like a little bit silly and like whatever, except for like, they do make it. It's great. He's great. I am legally obliged to say that Warner Brothers, television would not say that they made it. They would say that they made a different show. They do say it quite forcefully in lots of court documents. But yes, they ended up making a hospital emergency room drama starring Noah Wiley as a grizzled old emergency room doctor. You're afraid of making a mistake?

31:35I'm always afraid of making a mistake, aren't you? Yeah, of course I am. But you know what I mean. You make a mistake once and somebody dies and you feel so badly about it, you'll never let it happen. How is that wrong? Because you waste time and money on unnecessary tests. You keep sick patients waiting too long. And people really got into it. And one of the things that people seem to like about it is that it's not the bear. Oh, no, I'm just kidding. Did I say that? That is a thing that I liked about it. Right. They weren't like, oh, we're having a special episode where it's all about this one surgeon who sits with a scalpel for an hour.

32:11We should probably cut that. No, it's not a show that's lost in its own poeticness. It's just like, let's save lives. Hour after hour, bring in a new patient in on the gurney. Like, let's keep doing this. Let's raise the stakes. Being here means no matter how good you are or how hard you try, you're going to make another mistake. And someone else might even die. That's called being an emergency medicine doctor. If you can't accept that, then maybe this isn't the place for you. I can accept that. You sure? Yes. Okay. Good. Go save some lives. clear some beds while you're at it the doctors are being doctors and that's all I want is to just watch these people be good at being doctors yeah it must be so satisfying for Noah Wiley where it's just like it's the fantasy that never works out where you're like what if I could go back and he goes back and it turns out like people love hospital shows the same way they always loved hospital shows yeah I mean for Noah Wiley it couldn't have gone better like he was nominated multiple times for Emmys for ER, and he never won.

33:15And then he was like, let's do another hospital show. And he just won his first ever Emmy for Best Actor. So, I mean, yeah, it could not have turned out better for him. So, okay, so tell me, how does the drama around the drama start? The real-life drama? Well, before The Pit had even debuted, there was a lawsuit filed in California court that said that it was the Michael Crichton estate, and they said that it was an unauthorized sequel to or reboot of ER. And did they want to stop it from being made? They wanted to stop it. I think it had already been made, but they were trying to stop it from being aired.

33:54The first step that Warner Brothers and the creative team behind the pit took was to try to have the case dismissed. The courts did not agree in that the judge in California did not grant Warner Brothers' request. The judge was like, we're not just going to dismiss this lawsuit out of hand. Right. The judge was like, you know what? There's more to this than meets the eye. Here we have reached a surprising twist in our story. Not that the judge made an early ruling in favor of the entity trying to stop the pit. The twist is the identity of that entity, a character I did not expect to find in this story.

34:32And so who's behind the lawsuit? Like who controls the Michael Creighton estate? Okay, so we have to go back a couple steps. Michael Crichton, four times divorced with a teenage daughter, begins dating a former soap opera actress named Sherry Alexander. Famous writer marries former soap opera star. And tell me more. Well, they have a romantic wedding in Hawaii in front of a waterfall, and she becomes pregnant, and then he falls ill with cancer, and he dies tragically while she's pregnant with their unborn son. And so there's some back and forth over exactly who controls the estate and how. But at the end of it, Sherry Crichton ends up as the CEO of Crichton's son, which controls his archive and handles a lot of these kinds of rights negotiations.

35:40And she is not a passive collector of royalties. Okay. Okay. So since her husband passed away, they've done four Michael Crichton books. Two of them were books that he had written but hadn't published. Another one is called Micro and is finished by an author named Richard Preston. And then I think the best-known work was called Eruption, and it's finished by James Patterson. Becomes the New York Times' number one bestseller last year. And for a person who died in 2008, Michael Crichton has a pretty huge presence, right? As a person, you yourself is working on a book. Posthumously, he's publishing, I think, more than you have recently.

36:29That's a particularly mean way of putting it. Yes. He also has a lot more help, though. Like if somebody was like Nick Coolidge, we're giving you James Patterson. Yeah, I was about to say, James Patterson, if you're listening, Meet me at the Brooklyn Public Library on Sunday. I could really use your help. The Crichton Estate, led by Sherry Crichton, in addition to publishing books and approving new Jurassic Park movies, they also fight to make sure Michael Crichton keeps getting as much credit as possible on the new material that's made out of his old IP. But crucially for our story, the estate lost one of those fights not too long ago.

37:15You can see that defeat happen in real time by watching the beautiful opening credits to the pilot of HBO's TV show, Westworld, which came out in 2016. While Michael Crichton's name appears in the show's credits, he's not listed as the show's creator, which to the estate felt disrespectful.

37:37They firmly believe that he should have been considered the creator of the television series, and that at the beginning of every episode of that show, it should have said created by Michael Crichton. I mean, okay, in their defense, I didn't know it was a Michael Crichton series. Not in their defense, one, I don't pay a lot of attention to things, and two, he was dead at the time that they made the TV series. Yes. This gets into the naughty, K-N-O-T-T-Y, questions about intellectual property. Can dead people have new ideas? Or can dead people get credit for new ideas? Exactly. It's like, how much credit do you give to the person whose idea has been reanimated by people after their death?

38:23And obviously, the estate is always going to have a maximalist view of this. Definitely. And I think that for this story, what matters is the Crichton estate believed that Warner Brothers Television had not given proper credit and respect to their departed loved one. And they held that grudge into future projects. So the Crichton estate, led by Michael's widow, Sherry, tries to get as much posthumous credit on Michael Crichton's behalf as possible. But with Westworld, they feel like they didn't succeed. Flash forward a decade to the moment at hand, as Nick mentioned, in August 2024, the Creighton estate tries to file a lawsuit to prevent the Pitt from ever seeing the light of day.

39:08But the courts are slow, TV is relatively fast, and this past January, the Pitt premieres. And lots of people watch it, including Nick. So before you started to actually look at the lawsuit, what did you walk in thinking? So I think I found myself the way a lot of people would, watching the TV show, scrolling on my phone, and reading that Michael Creighton's widow had sued the makers of the pit, saying that they owed her and the Michael Creighton estate, more importantly, for making this sort of ER reboot. And my reaction to that was, that's crazy. it's not called ER. It's called The Pit. Yeah.

39:52It's not set in Chicago. It's set in Pittsburgh. That character's name is not Dr. John Carter. It's Dr. Rabinovich. And like hospital show is a genre. And hospital show is a genre. So, you know, what's she up to? And I think there are some obvious stereotypes that come into play, right? The widow, you know. Wait, the widow who's like trying to steal IP? That's not a stereotype. No, the widow who's bringing money out of the... I think there's like people have those like the greedy widow ideas, right? Oh, okay. Yeah, yeah, yeah. But when I started looking into it, because I'm the kind of person who watches a TV show and reads the Wikipedia page and then starts downloading court documents.

40:31It's so funny because the human impulse of I just watch a show, I want to read something on the internet, I also have. It's never extended for me to court documents around the production and I'm slightly jealous. Well, I mean, it should. Court documents are, as we'll see, the best. So what do you find? Well, what I find is a much more complicated story because in the parlance of your time, Sherry Crichton has a lot of receipts. Oh. Sherry Crichton has a lot of emails. And these emails are from John Wells, Noah Wiley, and they're very detailed and very emotive. And they are saying, hey, we want to remake ER, and this is how we're proposing to do it with this real-time show where you're in the emergency room hour by hour with the older, grizzled, Logan-style Dr.

41:27Carter. I see. So they'd ask for permission first. Yes. They very, very clearly ended up in negotiations with the Creighton estate about rebooting ER with a show that to the layperson looks a lot like the show that ended up being the pit. Can you read any of these emails?

41:51So, here's an email that was attached to Sherry Crichton's declaration to the court that is from Noah Wiley to John Wells. And it says, subject line, a not so crazy idea. Hmm. I then had my not-so-crazy idea, a character study in the vein of Logan, Picard, and Joker. Carter. A 12-episode Hulu limited series where we take another look at the guy who showed us the world the first time, darker and grittier, aged but still him. Is he practicing in Africa? Chicago? Is there any money left? Did he and Kem make it? I suspect that's a romantic partner from after I stopped watching you. Was there a kid?

42:44Did he ever slip? How he's framed the last 15 years would be interesting to a lot of people. What he feels about it all today would be equally so. I don't think I would have ever liked this idea before now, but there are things I want to say that need to be said, and I keep hearing them in his voice. and so this is no a wiley to john wells the original er writer yes well well originally the person who wrote yeah yeah yeah we must credit michael creighton michael creighton in some ways is responsible for search engine but okay so on the one hand she's got them a little dead to rights because clearly this started out as an er reboot on the other hand as someone who watched the pit and really enjoyed it there's a lot of stuff in that pitch that's gone like Like, I don't know who the person from ER is because they don't use that backstory.

43:33Like, they gave him a new backstory, and basically it's the same character with a different name. It's close. Yeah. Yeah. Nick reached out to both the people in this email thread, Noah Wiley and John Wells, for comment. They both declined. But while they didn't want to talk, presumably because of ongoing litigation, their emails tell a story of their own. After that internal email describing the gritty ER reboot, John Wells, former ER showrunner, wrote an email of his own, directly to Michael Crichton's widow, describing his vision for how the story would look on screen. So this is an email that says, from John Wells to Sherry Crichton from February 2023.

44:22He says to her, So what was the idea that made me think that we should revisit Chicago Memorial 15 years later? Oh, no. 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 Green. Oops. 30 years later, it was to be a 14-hour shift for John Carter, Noah Wiley, now the attending physician in the ER. The idea was to show the continuing collapse of public hospital emergency room care as chronic homelessness, fentanyl, and the aftermath of the pandemic have eroded the public health system.

45:01We could see Carter arrive for the beginning of his shift. I can almost see it. He's got the AirPods in. He's listening to music. He's listening to music.

45:20follow him through the 14 hours of his day, considering whether he can keep doing this work and watch him regain his purpose and recommit to his profession. It sounds a lot like the show that I watched. It does sound a lot like the show. And so after reading these emails, I had to, as a few of your listeners might say, update my priors. Mm-hmm. I'm not saying that Sherry Crichton should win or Warner Brothers should win, but I'm saying after reading these emails, I understood why Sherry Crichton felt that they'd kind of gone around her to make the show. Yeah, generally speaking, if you're going to ask somebody for something, you should probably be ready if they say no not to take it anyway.

46:07And I'm sure they feel that they adjusted the story enough that it's okay, but I understand why she would feel like that's not the case. Right. I think, and this is my opinion, not an informed legal opinion, but just my opinion as someone who's read all the documents. I think that if the people had made the pit and called it the pit without ever talking to Sherry Crichton, that they wouldn't be in court and we wouldn't be sitting here talking about it. What Nick's saying is not that the estate is necessarily right. He's saying those emails meaning the estate has a viable legal case. Nick is a reporter for the New York Times, as well as a careful person by temperament.

46:47So he's not going to render his personal verdict here, assuming he has one. But I'm a podcaster and much more risk tolerant, so I'll give you mine. I don't know what Michael Crichton would have wanted. Most people enjoy getting lots of credit and money for their ideas. But hearing the story of his career, what strikes me is that he was a deeply inspired person. The stories he told may have had roots in other stories. all the hospital dramas that preceded ER, the dinosaur stories that preceded Jurassic Park. But when Crichton told his versions, they had more power. He could tell a story that made people all over the world listen in a way that is exceptionally rare.

47:26And he got paid for that, a lot, as he should have. But the idea that now that he's gone, his estate should be able to stop other people from telling stories that are inspired by ER, but not, in my view, adapted from ER, I just don't agree with that. I think that logic belongs to the world of lawyers, not the world of storytellers. If you tell stories, you'll steal and you'll be stolen from. It'll bug you. But if you're really good at what you do, it won't matter much. Michael Crichton was very good at what he did. So are the people who made the pit. What will shake out in court, though? That's a different matter.

48:06So what's the most likely— Like, I know how much you love making predictions, particularly recorded in public. But, like, what's the likely outcome of where this goes? Well, I think the next step is the easy part to describe, which is Warner Brothers is appealing the judge's decision. And so if they win on appeal, then I think it's likely that they win and they get to continue making the pit and the Creighton estate is frustrated. I think that if Warner Brothers and the creative team lose again, they will have a pretty big incentive to settle. Because this is a big, complicated case that sprawls in a lot of directions.

48:51I don't think any of them are directions that an entertainment company really wants them to go. You mean it could just get very messy for them? Well, so I was reading those emails to you. Yeah. And nobody really wants their emails read out loud on a podcast, right? But those were the messages that they sent to Sherry Crichton, a person who they might reasonably have expected to sue them at some point over this. Oh, if there's a bunch of discovery. What were they saying to each other writing back and forth? Right. It has been mooted and suggested that the CEO of Warner Brothers Discovery, David Zaslav, could be asked for a deposition or to sit in the witness stand.

49:32That's the kind of thing that people try not to let their CEOs do. More importantly, there's a big debate going on about how much money there is for writers or how big the pot of money is that should be shared. And in a lot of ways, it's opaque. How do you say what is owed to the people who made the pit out of the money that was spent on a subscription to HBO Max? That's very hard to figure out. But if this case moved forward far enough, that's exactly the kind of thing they'd be trying to figure out because they'd be assessing damages. and does HBO Max or does Warner Brothers Discovery, do they want other creators knowing exactly how big the pot of gold at the end of the rainbow is?

50:21Certainly not. Probably not. Nick, thank you. Thanks so much for having me. Nicholas Coolish will include a link to his story about all this in our show notes. And you should also keep an eye out for his forthcoming book about Bill Gates. I predict it will be IP worth feuding over.

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52:01Search Engine is a presentation of Odyssey. It was created by me, PJ Vogt, and Shruthi Pinnimanini. Garrett Graham is our senior producer. Theme, original composition, and mixing by Armin Bazarian. Fact-checking this week by Natsumi Ajisaka. Additional production support from Emily Maltaire and Kim Kubel. Our executive producer is Leah Reese-Dennis. Thanks to the rest of the team at Odyssey. Rob Mirandi, Craig Cox, Eric Donnelly, Colin Gaynor, Mora Curran, Josephina Francis, Kirk Courtney, and Hilary Schaaf. Our agent is Oren Rosenbaum at UTA. Follow and listen to Search Engine wherever you get your podcasts.

52:36Thanks for listening. We'll see you in two weeks.

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