HBO Max’s “The Pitt” Can Proceed After California Appeals Court Finds Substantial Similarity

On November 6, 2026, the California Second District Court of Appeal affirmed the denial of HBO Max’s motion to dismiss the copyright infringement suit filed by the estate of Michael Crichton. That ruling holds that a showing of substantial expressive similarity suffices to survive a dismissal in a television‑format dispute. The estate can now proceed to discovery; actor‑producer Noah Wyle and two co‑producers were removed as parties. The decision narrows liability for participants without direct creative control.

Full News Breakdown

The dispute arose when the Crichton estate alleged that HBO Max’s series “The Pitt” copied protected elements of the long‑running drama “ER.” The core disagreement centered on whether the two programs shared enough expressive content to constitute infringement, and the appellate panel concluded that they did, while also excising certain defendants from the case.

Case Name: Estate of Michael Crichton v. HBO Max
Court: California Second District Court of Appeal, Second District
Panel: Three‑judge panel, unanimous decision
Date: November 6, 2026
Primary Legal Issue: Whether “The Pitt” is an unauthorized rebranding of “ER” under copyright law
Petitioner Arguments: The estate claimed that “The Pitt” appropriated protected plot structures, character dynamics, and visual motifs from “ER.”
Respondent Arguments: HBO Max contended that the shows differed in setting, cast, and specific storylines, and that any overlap was limited to unprotectable ideas.
Court’s Reasoning: The court applied the “substantial similarity” test, finding that the expressive elements identified by the plaintiff were sufficiently alike to survive a motion to dismiss.
Holding: Motion to dismiss denied; the lawsuit may proceed, but Noah Wyle and two co‑producers were dismissed as defendants.
Operative Order: Allow the estate to pursue discovery against HBO Max; remove the dismissed defendants from further proceedings.
Practical Outcome: The estate can now seek discovery of scripts, production notes, and other materials; the removed parties are no longer liable in this action.

How Does This Affect You?

Before the decision, plaintiffs faced uncertainty about the similarity threshold needed to keep a copyright claim alive in the television‑format context. The appellate panel held that a demonstrable showing of substantial expressive similarity satisfies the pleading standard, even when the works differ in setting or production details. Litigants now have a clearer path to survive dismissal, while defendants face more intensive similarity analyses at early stages of litigation.

For Lawyers & Advocates

The appellate standard suggests that complaint drafting benefit from a granular “substantial similarity” analysis, which can reduce the risk of early dismissal.
Internal clearance checklists for new series that include side‑by‑side comparisons of character arcs, episode structures, and visual motifs align with the court’s treatment of those elements as expressive.
Producer agreements that contain explicit indemnification clauses limiting liability for individuals without direct creative authority reflect the court’s dismissal of non‑creative defendants.
Citing this decision in motions to dismiss format disputes provides persuasive authority within the Second District and may influence other jurisdictions.
Clients developing “real‑time” medical dramas face heightened infringement risk until a thorough similarity audit is completed, given the court’s view that differing settings do not automatically defeat a claim.

For Law Students

This case teaches that courts apply a concrete expressive‑similarity analysis rather than a broad idea‑vague test when evaluating television‑format infringement. The core doctrine is the “substantial similarity” test under the Copyright Act, 17 U.S.C. §§ 101‑106.
The decision is particularly relevant for the study of:

Copyright infringement pleading standards
Entertainment law and format protection
Comparative analysis of expressive elements in audiovisual works
Liability of non‑creative participants in infringement actions
Judicial application of the idea‑expression dichotomy

Comparable cases include Warner Bros. Pictures Inc. v. RDR Books, 575 F.3d 1127 (9th Cir. 2009), which examined the line between idea and expression, and MGM Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005), which addressed liability of indirect participants. Comparing them to the appellate decision highlights how courts balance expressive similarity against the protection of high‑level concepts.

For Businesses

Production studios adding a “format‑differentiation” memorandum to each green‑light package, documenting how a new series departs from existing works, can mitigate exposure to infringement claims.
Streaming services revising content‑acquisition contracts to require producers to warrant that no protected expressive elements are copied and to secure indemnity for format‑related disputes aligns with the appellate emphasis on expressive similarity.
CFOs of media conglomerates budgeting for pre‑production legal audits of script decks address the increased likelihood and cost of discovery under the appellate ruling.
Licensing firms adjusting risk‑assessment models for acquiring adaptation rights to place greater weight on similarity analyses of narrative structure reflects the court’s focus.

Key Takeaways

A demonstrable showing of substantial expressive similarity is now required for a television‑format copyright claim to survive a motion to dismiss.
Embedding detailed similarity comparisons in pleadings and updating clearance checklists aligns with the appellate standard.
Courts can no longer rely on procedural dismissal alone when expressive similarity is evident, expanding the scope of judicial review in copyright cases.
The pending amendment to California’s copyright registration statutes may codify the similarity standard articulated in this decision.
In‑house counsel ordering a format‑differentiation audit before announcing a new series can mitigate infringement risk.

References

Source: ‘ER’ and ‘The Pitt’ are similar enough for lawsuit to move forward, appeals court says