Roadrunner JMTC v. Warner Bros. Television CA2/3

Filed 11/4/26 Roadrunner JMTC v. Warner Bros. Television CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE ROADRUNNER JMTC LLC, B344915 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. v. 24STCV21825) WARNER BROS. TELEVISION et al., Defendants and Appellants. APPEAL from an order of the Superior Court of Los Angeles County, Wendy Chang, Judge. Affirmed in part, reversed in part. Gibson, Dunn & Crutcher, Theodore J. Boutrous, Jr., Ilissa Samplin, Jay P. Srinivasan, Daniel Nowicki and Marissa Mulligan for Defendants and Appellants. Hueston Hennigan and Robert N. Klieger for Plaintiff and Respondent. _________________________  The producers and writers of the hit television series The Pitt have been sued by the owners of certain contractual rights in the earlier hit television series ER. Both series are dramas featuring medical teams under stress in the emergency room setting. The relevant rights to ER were owned by the famed Michael Crichton. He has passed away, and those rights are now owned by the plaintiff here, Roadrunner JMTC LLC (Roadrunner), controlled by Sherri Crichton, the heir to and widow of Michael Crichton. In 1994 Michael Crichton entered into an agreement (1994 Agreement) with one of the defendants here (Warner Bros. Television (WBTV)) that it would not make works derivative of ER without his agreement (now, without the agreement of Roadrunner). No such subsequent agreement was reached. When defendants went ahead with the production of The Pitt, Roadrunner sued WBTV for breach of contract, breach of the implied covenant of good faith and fair dealing, and sued other defendants involved in the making of The Pitt for intentionally interfering with the 1994 Agreement. The complaint was met with a special motion to strike under the anti-SLAPP statute, which was denied. While the complaint repeatedly refers to the “series” of shows constituting ER and The Pitt, the litigation of the anti-SLAPP motion assumed the claims relate only to the pilots of the two shows. Defendants now appeal from the denial of the anti-SLAPP motion. We affirm the denial as to WBTV but reverse it as to the other defendants. 2  FACTUAL AND PROCEDURAL BACKGROUND 1. The Parties The plaintiff is Roadrunner, successor to Michael Crichton’s rights in ER. Defendants are (i) WBTV; (ii) WarnerMedia Direct, LLC (WMD), which assertedly airs The Pitt; (iii) John Wells, the executive producer of The Pitt and his company John Wells Productions (JWP); (iv) Noah Wyle, who was an actor on ER as well as on The Pitt; and (v) R. Scott Gemmill who was executive producer for some episodes of ER and is the announced showrunner and an executive producer of The Pitt. 2. Background The complaint tells the story of Michael Crichton’s remarkable career, which for our purposes culminated in his working with Steven Spielberg to develop what was earlier called Emergency Ward and later turned into ER. The show was sold to WBTV and the copyright was transferred to WBTV. Although the copyright was then owed by WBTV, Crichton and WBTV signed the 1994 Agreement with a “frozen rights” provision, detailed below, which blocked WBTV from making shows, i.e., “sequels, remakes, spinoffs, or other productions,” which were derivative of ER. Michael Crichton died in 2008. The complaint asserts that in early 2020, defendants began development of what Roadrunner calls a “reboot” of ER. This development, alone, allegedly violates the “frozen rights” provision. Two years later, Sherri Crichton (who controls Roadrunner) was contacted for her approval, which, after some bargaining, she refused. Defendants then in short order developed The Pitt. 3  Roadrunner claims, “The Pitt is ER. It’s not like ER, it’s not kind of ER, it’s not sort of ER. It is ER complete with the same executive producer, writer, star, production companies, studio, and network as the planned ER reboot.” Thus the complaint asserts The Pitt violates the frozen rights provision. Defendants perforce have a different take. Their 2022 efforts which culminated in The Pitt resulted in a “brand-new medical drama with no ties to ER. The Pitt had different characters, settings, visuals, styles, music, timing, and more.” Defendants assert that the only similarities between the shows are that, as with many other shows, “they are both medical dramas set in emergency departments.” They also share an actor, defendant Noah Wyle. 3. The contract and claims Michael Crichton developed ER (then known as Emergency Ward) and assigned copyright rights to Warner Bros. But in what the complaint terms “an unusual” contractual clause he negotiated in the 1994 Agreement a “ ‘frozen rights’ provision, made possible only because of his stature in the industry, that prohibited future productions without Crichton’s consent. Specifically, Crichton’s 1994 contract with Warner Bros. (the ‘1994 Agreement’) . . . stated that ‘any and all sequels, remakes, spin-offs and/or other derivative works . . . shall be frozen, with mutual agreement between Crichton, Amblin and Warner Bros. being 4  necessary in order to move forward in any of these categories.’ ”1 The 1994 agreement was signed by WBTV, and included this language: “2. If Warner Bros. is unsuccessful in obtaining a series order for ER for Fall 1994 or mid-season 1994 as described above, the Series rights to ER shall be frozen, with mutual agreement between Crichton, Amblin and Warner Bros. being necessary in order to move forward. “3. . . . subject to paragraphs 2 and 10 and the terms of WGA Agreement, Warner Bros. will acquire all rights in and to the property. [¶] . . . [¶] “10. Any and all publishing relating to ER, any and all theatrical releases, any and all sequels, remakes, spin-offs 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.” 1 Amblin Entertainment was owned by Steven Spielberg, who with Crichton jointly produced Emergency Ward and its successor ER. As is commonly known, Spielberg made Jaws, Jurassic Park, E.T., Close Encounters of the Third Kind, and other films. Amblin is not a party here. 5  The complaint’s first cause of action asserts against WBTV breach of the 1994 Agreement, and in the second cause of action a breach of the related implied covenant of good faith and fair dealing. The rest of the defendants—WMD, Wells/JWP, Wyle, and Gemmill—are sued in the last cause of action for intentional interference with contractual relations, that is, knowingly disrupting the 1994 Agreement. The heart of the complaint is that, after WBTV tried and failed to get Roadrunner’s agreement on a reboot of ER, defendants went ahead anyway with The Pitt, which was in essence “ER 2.0.” This violated the frozen rights provision of the 1994 Agreement because The Pitt was derivative of ER. 4. The anti-SLAPP motion is filed In response to the complaint, defendants filed an anti-SLAPP motion seeking dismissal. (Code Civ. Proc., § 425.16.) Anti-SLAPP motions require, as the “first prong,” that defendants show the claim to be based on “protected” First-Amendment-related activity. If so, the statute then requires as a second prong a showing of “minimal merit” from the plaintiff. If there is no merit, the claim is stricken. (See generally, Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 276, 278–279.) The parties agree prong one is satisfied and disagree on the second prong. Roadrunner claims The Pitt is a “derivative” of ER in the relevant sense of that term, and so the 1994 Agreement is breached. Defendants say there is no admissible evidence to support Roadrunner’s view of the meaning of “derivative” and under any reading, The Pitt is not derivative; thus no cause of action has merit. There are additional arguments on the 6 last cause of action (intentional interference with contractual relations) which we discuss separately. The trial court resolved admissibility issues both in favor of and against Roadrunner, in the end finding sufficient evidence to support Roadrunner’s view of the meaning of the 1994 Agreement. It then found prong two satisfied and denied the anti-SLAPP motion. Defendants now appeal.2 DISCUSSION Defendants say the trial court erred in three respects. First, the court used inadmissible evidence to conclude that the term “derivative works,” as used in the 1994 contract, did not have its meaning under copyright law. Second, there was no evidence that The Pitt was derivative even under an “ordinary” plain language interpretation of the term, much less the copyright meaning. Third, the trial court never addressed the viability of the claims for breach of the implied covenant and intentional interference with contract. 1. Standard of Review Our review in anti-SLAPP matters is de novo. (Newport Harbor Offices & Marina, LLC v. Morris Cerullo World Evangelism (2018) 23 Cal.App.5th 28, 42.) The standard of review on contract interpretation is more nuanced. The usual standard is de novo. Whether a term is ambiguous or not is also reviewed de novo. (Pomona Valley Hospital Medical Center v. Kaiser Foundation Health Plan, Inc. (2026) 119 Cal.App.5th 43, 63.) If there is an ambiguity and 2 Orders deciding anti-SLAPP motions are appealable. (Code Civ. Proc., § 425.16, subd. (i).) 7 its resolution depends on credibility findings, our review is the highly deferential “substantial evidence” standard. (Thompson v. Asimos (2016) 6 Cal.App.5th 970, 981; People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2003) 107 Cal.App.4th 516, 520 [“ ‘interpretation of a contract is subject to de novo review where the interpretation does not turn on the credibility of extrinsic evidence’ ”].) This may occur, for example, if the resolution of an ambiguity depends on believing extrinsic evidence about the meaning of a word, such as a witness’ testimony or conflicts in testimony. The extrinsic evidence here comprises various declarations filed by Roadrunner in support of its interpretation of the frozen rights provision. Defendants do not attack the credibility of those witnesses (they do contest admissibility), and the trial court did not purport to resolve credibility issues. It follows that our review is de novo. 2. Anti-SLAPP Anti-SLAPP law is codified at Code of Civil Procedure section 425.16.3 This allows a special motion to strike claims, brought early in a case and usually decided without the benefit of discovery. The law targets claims made not with an expectation of success, brought only to muzzle an adversary with the threat of burdensome, meritless litigation. In what is now a familiar pattern, anti-SLAPP analysis has two prongs. First, one determines if the conduct or speech that is the focus of the claims is “protected activity” falling within one or more of the categories in subsections 425.16 (e)(1) through 3 Statutory references are to the Code of Civil Procedure. 8 (4). (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) If it does, then under prong two, one determines if there is “ ‘minimal merit’ ” to the claim, that is, evidence sufficient for a prima facie case. (See generally Grewal v. Jammu (2011) 191 Cal.App.4th 977, 989; Baral v. Schnitt (2016) 1 Cal.5th 376, 384–385.) If there is minimal merit, the anti-SLAPP motion is denied and the case proceeds. “ ‘Put another way, the plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” ’ ” (Navellier, at pp. 88–89.) The Supreme Court has compared the burden on the second prong to that in a summary judgment motion, but in “ ‘reverse.’ ” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 719; Medley Capital Corp. v. Security National Guaranty, Inc. (2017) 17 Cal.App.5th 33, 44.) The statutory test is whether there is “a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) Just as a defendant in a summary judgment motion must offer “a prima facie showing of the nonexistence of any triable issue of material fact” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850), so too plaintiffs in an anti-SLAPP motion must produce admissible evidence sufficient to make a prima facie case for each element of each claim subject to the motion. (Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1102 [summary judgment requirement to establish “an essential element of the cause of action”].) The parties agree prong one was met. The second prong focuses on whether there is minimal merit to Roadrunner’s claim that WBTV breached the frozen rights provision. That in turn depends on whether The Pitt 9 is a “derivative” of ER. That spawns two issues. First, does “derivative” carry the relatively restricted and technical meaning it has in copyright law, as defendants have it? Or, as Roadrunner claims, does it have the broader, common-usage meaning? Second, each side claims that, no matter which definition is used, it prevails. 3. The trial court’s order The trial court found that the “minimal merit” standard was met on prong two. The court relied on the extrinsic evidence of Steven Katz on the meaning of “derivative.” Katz drafted the provision, as counsel for Crichton and his company. Under the broad, common usage meaning of that term that Katz urged, the court ruled: “Plaintiffs’ evidence establish a timeline of various communications and events to show the negotiations with the Estate over an ER reboot, failure of those negotiations, and the creation of The Pitt. Plaintiffs’ evidence challenges Defendants[’] assertion of the applicable definition of derivative works as intended by the parties when drafting the original Agreement. While Defendants challenge Mr. Katz’s declaration, that challenge goes to the weight and not the admissibility of his testimony. Mr. Katz[’s] testimony, as the original drafter of the clause in question, is sufficient to challenge Defendants’ definition of derivative works in the Agreement.” 4. The evidentiary issues With a narrow exception not relevant here, courts may only rely on admissible evidence in anti-SLAPP motions. (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940.) The trial court made three significant rulings on the 10 admissibility of evidence. They addressed declarations of Steven Katz, Todd Leavitt, and Howard Rodman. The court relied on the Katz declaration to the effect that “derivative” had the broad meaning urged by Roadrunner. The court did not rely on Leavitt. The court sustained all objections to the Rodman evidence. a. Standard of review It is commonplace to note the standard of review for evidentiary rulings is abuse of discretion. (E.g., People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 766; Monroy v. City of Los Angeles (2008) 164 Cal.App.4th 248, 265.) This is clearly so when the ruling requires weighing or involves “ ‘qualitative’ ” or “ ‘equitable determinations.’ ” (Doe v. Software One, Inc. (2022) 85 Cal.App.5th 98, 104.) But because it’s an “abuse of discretion” if an error of law is made, the standard of review in those cases is in effect de novo. (Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102, 1124 (conc. opn. of Turner, P.J.); Kourounian v. California Dept. of Tax & Fee Administration (2023) 91 Cal.App.5th 1100, 1111–1112; People v. Jennings (2005) 128 Cal.App.4th 42, 49.)4 The evidentiary issues discussed here presented issues of law, which we review de novo. 4 For example, hearsay rulings, based on questions of law, likely are subject to de novo review. (Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1451.) For the same reason—when the legal premises of a ruling are in play—some trial courts’ determinations on expert testimony are subject to de novo review. (Strobel v. Johnson & Johnson (2021) 70 Cal.App.5th 796, 817.) “In contrast, evidentiary objections based on lack of foundation, qualification of experts, and conclusory and speculative testimony are traditionally left to the sound discretion of the trial court.” 11  b. Katz The trial court wrote that defendants’ “challenge goes to the weight and not the admissibility of [Katz’s] testimony.” That is not so. The objections were to the admissibility of the evidence.5 As mentioned, Katz drafted the 1994 Agreement with its frozen rights provision. The testimony he offered, to which defendants objected, was this: “1. Paragraph 6 in full: ‘Unlike an after-the-fact approval right, paragraph 10 of the 1994 Agreement was drafted as a true freeze, meaning that none of Warner Bros., Amblin, or Mr. Crichton could even start down the road of developing a project based upon or otherwise derived in any way from ER without the mutual agreement of the others.’ “2. Paragraph 8—first sentence: ‘In negotiating the 1994 Agreement, I understood and intended the words “derivative” and “work” to be used as they are generally understood in the English language, meaning any work or production based upon or derived in any way from ER.’ (Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206, 226.) 5 The trial court was, it appears, in effect ruling that the grounds cited by defendants, in the view of the court, did no more than address the weight of the evidence. 12  “3. Paragraph 8—last sentence: ‘I believe that Warner Bros. is distorting the intention of paragraph 10 by the coincidence that “derivative work” happens to be a defined term under the Copyright Act.’ “4. Paragraph 9—last sentence: ‘Had Warner Bros. submitted a long-form contract in which it attempted to limit derivative works to the definition of the Copyright Act, I would have strongly objected.’ “5. Paragraph 10—part of last sentence: ‘and informed my understanding of agreement at the time.’ ” The objections were overruled. The admitted Katz testimony was the sole basis of the trial court’s conclusion that the reference to “derivative” works in the 1994 Agreement did not have the meaning as used in copyright law. Defendants had objected on the basis that the undisclosed understanding or views of a party to a contract (we assume Katz as such, although he was in fact counsel) are irrelevant to the meaning of a written contract. (Steller v. Sears, Roebuck & Co. (2010) 189 Cal.App.4th 175, 185 [“ ‘ “undisclosed intent or understanding is irrelevant to contract interpretation” . . .’ ”]; Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 798.) Roadrunner notes that not all of the Katz declaration was the subject of objection and states—without argument— the rest of the declaration is enough to show the meaning of the disputed term. That is not so. The balance of the Katz declaration, to which defendants did not object, only shows 13 that the parties did not discuss the meaning of the term. As to the crucial material subject to objection, Roadrunner does not disagree with defendants. Roadrunner just asserts that Katz did more than assert his personal understanding of the frozen rights provision, which is true but irrelevant here. Roadrunner does not defend the evidentiary ruling of the trial court. Nor could it: it is clear that, as defendants argued, the objective meaning of words matter, not the undisclosed thoughts or views of a participant. (E.g., Salehi v. Surfside III Condominium Owners Assn. (2011) 200 Cal.App.4th 1146, 1159.) The trial court should have sustained defendants’ objections to the Katz declaration. c. Leavitt Todd Leavitt was presented as an industry expert. He testified on “custom and practice” in connection with the frozen rights provision. The clause, he suggests, is “distinct” from other deals, due to the “extraordinary credentials” of Crichton and Spielberg. The court sustained some of defendants’ objections, but overruled others, specifically objections to parts of Leavitt’s paragraphs 10, 11, and 12. The court should have sustained those objections as well. Much of the material in paragraphs 10, 11, and 12 is just commentary on the contract (e.g., “[T]he approval rights of the beneficiary of the provision will prevail and there is nothing further that the opposing party can do about it.”; observations that terms “could not be plainer”; and conclusions that Warner Bros. failed to get Roadrunner’s permission to make The Pitt which is “clearly derivative” of ER.) None of this is custom and practice testimony on the meaning of the frozen rights clause, which may be why the trial court did not rely on it. 14  One paragraph states that the frozen rights clause’s “philosophical basis and core purpose is not a function of elements such as the copyright law concept of ‘substantial similarity’ as would be necessary to prove a claim for copyright infringement.” This is not custom and practice evidence either; there is no suggestion that there is any custom with regard to the clause which is highly atypical, as the Complaint avers, and Katz testified. There is no suggestion here of a long-standing custom, a general practice, regarding this clause.6 Defendants objected that Leavitt was providing impermissible expert testimony on the meaning of a contract. Roadrunner does not defend the trial court’s ruling. Roadrunner simply says the other parts of the declaration show custom and practice. But those parts don’t address the meaning of the frozen rights clause. Defendants’ objections should have been sustained. d. Howard Rodman Plaintiffs offered Rodman as an expert on the similarities between the two shows. As Roadrunner notes, he is “a Professor (and former chair) of the John Wells Division of Writing for Screen and Television at USC’s School of Cinematic Arts, past President of the Writers Guild of America West, and 6 Compare, e.g., Jones v. Robertson (1947) 79 Cal.App.2d 813, 818–819 [“ ‘Custom’ is defined . . . as ‘Something which has by its universality and antiquity acquired the force and effect of law, in a particular place or country, in respect to the subject matter to which it relates; general practice, judicially noticed without proof.’ [¶] In Fuller Brush Co. v. Industrial Commission, 99 Utah 97 [104 P.2d 201, 203, 129 A.L.R. 511], ‘customarily’ is defined as meaning ‘usually, habitually, according to the customs, general practice or usual order of things, regularly.’ ”].) 15 one of three Governors of the Writers Branch of the Academy of Motion Picture Arts and Sciences.” Rodman notes the similarities in the premises of the two shows and distinguishes both of them from other medical shows as addressing specifically action in the emergency room. He discusses the structure of the two shows including the time periods they cover, and opines the pace of the two shows is “decidedly similar.” He notes the similar language such as the “rapid-fire deployment of medical jargon,” “scores of obscure or profession-coded pieces of language in each episode,” and the similar impact these are likely to have on the viewer. He writes that the incidents—detailed in the declaration—are similar. He testifies that similarities in the selection and arrangement of elements were so “striking, substantial, and undeniable” that the pilot scripts read like episodes “of a single continuing series.” Defendants objected that his expertise was irrelevant because the court could view the shows without any need for expertise. The court sustained the objections. It’s true that, as defendants note, Rodman’s descriptions of what he saw cannot trump what the court saw when it read the scripts or viewed the shows. But Roadrunner’s authorities, and others, are good support for the proposition that expertise in this context—comparison among the works at issue on the extrinsic branch of the substantial similarly test—is indeed relevant and proper. (Three Boys Music Corp. v. Bolton (9th Cir. 2000) 212 F.3d 477, 485 [“The extrinsic test often requires analytical dissection of a work and expert testimony.”], overruled on a separate ground in Skidmore v. Zeppelin (9th Cir. 2020) 952 F.3d 1051 (Skidmore); accord, Sid & Marty Krofft Television v. McDonald’s Corp. (9th Cir. 1977) 562 F.2d 1157, 1164 16 [“analytic dissection and expert testimony are appropriate” for extrinsic part of substantial similarity test], overruled on a separate ground in Skidmore; Ambrosetti v. Oregon Catholic Press (9th Cir. 2025) 151 F.4th 1211, 1224–1225 (Ambrosetti) [use of expert on substantial similarity]; accord, Swirsky v. Carey (9th Cir. 2004) 376 F.3d 841, 845; cf. Yonay v. Paramount Pictures Corp. (9th Cir. 2026) 163 F.4th 685, 692 (Yonay) [contrasting the intrinsic branch of the test, which does not use experts, with the extrinsic branch].) Defendants suggested at oral argument that this use of experts was limited to music and computer code cases, where a layperson would not have a basis to make the relevant comparison. Circuits may differ, but in the Ninth and Second Circuits there appears to be no such limitation. (Hanagami v. Epic Games, Inc. (9th Cir. 2023) 85 F.4th 931, 945 [choreography]; Walker v. Time Life Films, Inc. (2d Cir. 1986) 784 F.2d 44, 51 [film]; Shaw v. Lindheim (9th Cir. 1990) 919 F.2d 1353, 1357 (Shaw) [television show], overruled on a separate ground in Skidmore; compare, e.g., Tanksley v. Daniels (3d Cir. 2018) 902 F.3d 165, 172 & fn. 3 [no need for expert for television pilot]; Stromback v. New Line Cinema (6th Cir. 2004) 384 F.3d 283, 295–296.)7 The Rodman opinion was admissible. 7 As we discuss below, the parties disagree whether ER comprised a unique collection of features such as pacing, language, and so on, which appear in The Pitt. Defendants say the commonalities are shared with many “other hospital drama[s],” and suggest “dozens of other shows” have similar content. The elements identified by Roadrunner as entitled to protection are said to be “generic” and “basic plot tropes”; 17 5. Breach of contract Even without Katz’s evidence on the interpretation of the frozen rights provision, we review whether it is likely Roadrunner can show the 1994 agreement was breached, more specifically, that there is a prima facie case that The Pitt is a “derivative” of ER. We find that, even adopting the more stringent definition of “derivative” urged by defendants, Roadrunner has made out a prima facie case. Accordingly, we need not discuss Roadrunner’s alternative argument, which relies on an asserted common, non-legal meaning of the term. a. The copyright meaning of “derivative” The parties assume, as we do, that a work which is substantially similar to another work is a “derivative” of that work under copyright law. Roadrunner claims it has provided evidence of the two basic elements of infringement: that defendants had access to ER and the two shows “are substantially similar.” (Cavalier v. so too there are familiar “ ‘stock scenes’ ” which as such cannot be subject of copyright. For its part, Roadrunner acknowledges there may be “hundreds of possible iterations of medical dramas” but says the features of ER stand out, and argues that ER and The Pitt share an essentially unique set of features. A presumption is buried in both these arguments, which is that the reader—the court for example, or later, perhaps a jury— has the background to recognize whether a plot device, language, pace, setting, and so on, are widespread or not, and concomitantly whether an element shared by both shows is relatively unique. But the reader, or a jury, may or may not watch these sorts of shows; and may have an idiosyncratic understanding of the field. An expert, with a perspective on a wide range of shows, may have worthy insights. 18 Random House, Inc. (9th Cir. 2002) 297 F.3d 815, 822 (Cavalier).) Access is not disputed here, so we turn to the test for “substantial similarity.” We map out two approaches to substantial similarity used in the Ninth Circuit.8 The first is the common analytical dissection of works, setting aside non-protected material, then 8 The parties have briefed Ninth Circuit law, although ordinarily there would be no reason to avoid opinions from other Circuits. It may be that the parties have defaulted to Ninth Circuit cases because we are not, ultimately, interested in copyright but rather in a contract, which employs a term assertedly borrowed from copyright law. The contract was apparently made in California among California parties, so the parties may have assumed Ninth Circuit law is relevant. The law in other circuits may differ. (See generally, Asay, An Empirical Study of Copyright’s Substantial Similarity Test (2022) 13 UC Irvine L.Rev. 35, 40–41 [“significant heterogeneity” in the law of various circuits]; Rogers, Substantially Unfair: An Empirical Examination of Copyright Substantial Similarity Analysis Among the Federal Circuits (2013) 2013 Mich. L.Rev. 893, 895 [“[T]he federal circuit courts disagree vehemently about the mechanics of arguably the most important area of copyright law—the process by which courts determine if one work is illegally infringing on another’s copyright—the substantial similarity standard. The confusion and disagreement in the doctrine of substantial similarity is not only found in the inter-circuit divergences, but also in the lack of clarity in each circuit’s particular test for copyright infringement.” (Footnotes omitted.)].) Indeed, the application of the substantial similarity test even within the Ninth Circuit is reportedly uneven. (4 Nimmer on Copyright (2026) Summary Judgment, § 13D.22.) In any event, we follow the parties in generally relying on Ninth Circuit cases. 19 comparing only protectable elements. The second approach is the “selection-and-arrangement” approach which reviews all elements (whether individually protectable or not), arranged in an original sequence, and determines if that original sequence has been copied in the accused work. Under both tests Roadrunner provides a prima facie case. i. Analytical dissection Substantial similarity—at least in the Ninth Circuit— is established if a plaintiff proves both substantial similarity of general ideas under the “ ‘extrinsic test’ ” and substantial similarity of the protectable expression of those ideas under the “ ‘intrinsic test.’ ” (Shaw, supra, 919 F.2d at p. 1356, overruled on a separate ground in Skidmore, supra, 952 F.3d 1051.) “The ‘extrinsic test’ is an objective comparison of specific expressive elements. ‘[T]he test focuses on articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events in two works.’ [Citation.] . . . [T]he extrinsic test, now encompass[es] all objective manifestations of expression . . . . The ‘intrinsic test’ is a subjective comparison that focuses on ‘whether the ordinary, reasonable audience’ would find the works substantially similar in the ‘total concept and feel of the works.’ [Citation.] [¶] A court ‘must take care to inquire only whether “the protectible elements, standing alone, are substantially similar.” ’ [Citations.] Therefore, when applying the extrinsic test, a court must filter out and disregard the non-protectible elements in making its substantial similarity determination. [Citations.]” (Cavalier, 20  supra, 297 F.3d at pp. 822–823; see also Yonay, supra, 163 F.4th at p. 692.) The parties have not discussed the intrinsic branch of the test, that which results in a subjective evaluation that the two works are (or are not) similar; the shared working assumption here, apparently, is that a trier of fact could conclude that there is sufficient similarity. Because the issue is subjective, it does not lend itself to summary judgment or, in our case, whether a prima face case has been made, and the parties have not addressed this aspect. (Woodland v. Hill (9th Cir. 2025) 136 F.4th 1199, 1210 [“ ‘the intrinsic test is reserved exclusively for the trier of fact’ ”]; Ambrosetti, supra, 151 F.4th at p. 1224 [“Courts apply only the extrinsic test at summary judgment.”].) Under the extrinsic test, protectable elements eligible for comparisons between the two works include the “ ‘plot, themes, dialogue, mood, setting, pace, characters, and sequence of events in two works.’ ” (Yonay, supra, 163 F.4th at pp. 692–693.) Unprotectable elements, which courts are to disregard in this test, include “ ‘ideas and concepts, material in the public domain, and scènes à faire (stock or standard features that are commonly associated with the treatment of a given subject).’ ” (Biani v. Showtime Networks, Inc. (9th Cir. 2025) 153 F.4th 957, 963.) A review of the two works9 reveals that Roadrunner made a prima facie case showing common protectable elements of plot, themes, dialogue, mood, setting, pace, characters, and sequence of events. As Roadrunner noted in its opposition to the 9 The parties lodged with the court pilot scripts of the two shows, as well as corresponding media files. 21 anti-SLAPP motion, both shows provide commentaries on the health care system; they focus specifically on the emergency room and the difficult conditions under which the medical staff operates. Both shows take place, with little exception, in the emergency room, as opposed to other medical shows which track patients as they move out of the emergency room, or indeed never enter it. The pacing of events is also common: very fast pacing, and reactions to multiple overlapping crises. The fast-paced dialogue is (to a layperson) frequently incomprehensible shorthand and jargon, lending an air of immediacy and accuracy to the presentation. Both shows feature a series of patients: they are presented in overlapping sequences, with medical personnel interrupting their work with one to attend to another, layering on crisis after crisis. The shows both display graphic depictions of injuries. The doctors and nurses are exhausted; there are emotional outbursts. Each includes a young doctor, fresh from medical school and incompetent. This is evidence that “ ‘the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events’ in two works” are the same. (Kouf v. Walt Disney Pictures & Television (9th Cir. 1994) 16 F.3d 1042, 1045.) Defendants do not directly counter this showing. Instead, they argue that all this comprises merely stock scenes and “scenes a faire” which are not protectable. (Cavalier, supra, 297 F.3d at p. 823.) Defendants argue both shows are just medical dramas “featuring overworked doctors and staff,” with “generic similarities” common to “any dramatic story involving emergency room doctors.” Any show featuring action in an emergency room would have all these features, defendants argue, and it cannot be that all shows set in an emergency room are derivative of ER. 22  Defendants’ position has some strength. But their approach ignores the specific elements noted above by collapsing them under the rubric of high-level abstractions. From that perch, defendants argue, rightly, that copyright does not protect those general ideas. Copyright law is meant to protect expressions, and not the animating ideas; the specific, not the general, they say. But the critical distinction between “idea” and “expression” is difficult to draw. “As Judge Hand candidly wrote, ‘Obviously, no principle can be stated as to when an imitator has gone beyond copying the “idea,” and has borrowed its “expression.” ’ Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960).” (Herbert Rosenthal Jewelry Corp. v. Kalpakian (9th Cir. 1971) 446 F.2d 738, 742.) Parties often can employ higher, or lower, levels of abstraction to describe a work, because “every work can be described at varying levels of abstraction, and the higher the level of abstraction copied, the less likely this taking will be infringement of a copyright. [¶] As Judge Hand noted, the difference between idea and expression is one of degree.” (CDN Inc. v. Kapes (9th Cir. 1999) 197 F.3d 1256, 1262; see 4 Nimmer on Copyright (2026) Learned Hand’s Abstractions Test, § 13D.13.) Defendants allude to the commonalities between the shows as abstracted ideas with generic similarities, but that does not necessarily imply that Roadrunner has failed to make out a prima case on specific protected elements at a lower level of abstraction. The procedural posture here is important: we have an anti-SLAPP motion brought at the outset of litigation, designed to weed out meritless claims. The issue is whether Roadrunner 23 made out a prima facie case, and in resolving this we “ ‘must draw “every legitimate favorable inference” from the [anti-SLAPP] plaintiff’s evidence.’ [Citations.]” (Roche v. Hyde (2020) 51 Cal.App.5th 757, 787.) There are clear and numerous similarities between The Pitt and ER; where those similarities lie, on a ladder of abstractio