Proving Copyright Infringement: Facts are Not Copyrightable, Says Federal Judge

The producers of the popular Netflix show “Narcos” were vindicated in a recent trial over alleged copyright infringement. U.S. District Judge Rodney Smith ruled that Netflix and the producers did not use copyrighted material from a book written by the former lover of Pablo Escobar. A lawsuit filed by Virginia Vallejo who claimed that “Narcos” stole scenes from her memoir — “Loving Pablo, Hating Escobar” — which detailed her romance with Escobar. At the time of her romance, Vallejo was a well-known Colombian journalist and media personality. She was romantically involved with Escobar during his rise to become the kingpin of Colombia’s drug cartels.

Copyright infringement is governed by federal law, specifically, the Copyright Act. Copyrights are legal protections for authored “works.” The copyright inheres in the “work” and the author can register the copyright which allows the author to sue for infringement. A claim of copyright infringement is proven if the author, the plaintiff, can show that the infringer, the defendant:

  • copied portions of the plaintiff’s work and
  • that what was copied was “protectable” — that is, original works, not already created works or works involving historical facts

If you have questions about registering your copyright or about how to protect your copyrights, you should seek counsel and advice from an experienced San Diego corporate attorney.

The Vallejo lawsuit against Netflix provides a good example of where the “lines” are with respect to what is protectable copyrights. In the lawsuit, Netflix and the “Narcos” producers admitted that they used Vallejo’s memoirs as a basis for some of the scenes and storylines. However, Netflix and the producers disputed that what they used in the show were original to Vallejo’s memoir or protectable as copyrights.

Vallejo specifically identified two scenes as being copied. The first was a sexual encounter between Escobar and Vallejo involving foreplay with a handgun. The second was a scene depicting a meeting involving Escobar, Vallejo, and a leader of a Colombian guerrilla organization. In that meeting, Escobar gave the leader $2 million to raid the offices of the Colombian Supreme Court to destroy all the evidence prior to their ruling on Escobar’s extradition to the United States.

In ruling on the claims, the court conducted a detailed review of the scenes from Vallejo’s memoir and the relevant “Narcos” scenes. The court found that there were no elements of the book that were unlawfully copied. Historical facts — such as the meeting between Escobar and the guerrilla leader — are not “original works of authorship” entitled to copyright protection. This is true even if the historical facts are first revealed in a book like Vallejo’s. As for protectable aspects of the memoir, the court found there to be no copyright violation. First, the court found that the general idea of using a gun as sexual foreplay was, itself, not protectable. The court then found the sex scenes in the book and the show to be substantially different. As reported, the court found that “The atmosphere, or overall feel, of each of the scenes is very different.” The judge highlighted other factors including:

  • No dialogue was copied
  • Many details in the setting and backgrounds were different
  • In the book, Vallejo is not afraid — in the “Narcos” scene, the female character is afraid and is victimized
  • In the book, Vallejo is depicted as sparring with Escobar and goading him — in the “Narcos” scene, the female character is submissive and allows the foreplay with the gun
  • In the book, Vallejo tells Escobar to stop — in the television scene, the female character does not tell Escobar to stop and Escobar continues using the gun beyond mere foreplay

The court made a similar finding with respect to the meeting with the guerrilla leader. As noted, the historical fact of the meeting was not protectable. The court found that the “Narcos” version of the meeting with the guerrilla leader was substantially different because — most importantly — the woman in the “Narcos” scene was not Vallejo. The court noted that that changed the tone and tenor of the scene. Further, there were substantial differences in details, setting, and background. Likewise, there was no copying of dialogue and there is a substantial difference in the content of the dialogue.

For these reasons, the court ruled against Vallejo. The case provides a good example of how to use historical material without infringing on copyrighted original works. See Vallejo v. Narcos Production, LLC, Case No. 18-cv-23462 (US Dist. S. D. Fla. November 8, 2019).

Contact San Diego Corporate Law

If you need legal advice and services related to registering copyrights or protecting your company’s other intellectual property, contact Michael Leonard, Esq., of San Diego Corporate Law. Mr. Leonard focuses his practice on business law, transactional, and corporate matters, and he proudly provides legal services to business owners in San Diego and the surrounding communities. Mr. Leonard can be reached at (858) 483-9200 or via email. Like us on Facebook.

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