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IP/Entertainment Case Law Updates

Vallejo v. Narcos Productions LLC

In copyright infringement suit accusing producers and distributors of Netflix series Narcos of infringing memoir written by journalist and former mistress of Pablo Escobar, district court grants summary judgment in favor of defendants, finding that similarities constituted historical facts and were therefore unprotectable.

Colombian journalist Virginia Vallejo’s memoir, Amando a Pablo, Odiando a Escobar (Loving Pablo, Hating Escobar), recounts her time as the mistress of Colombian drug lord Pablo Escobar.  Vallejo brought a copyright infringement suit against defendants, the producers and distributors of Narcos, a series about the Colombian drug trade available for streaming on Netflix. 

Vallejo alleged that scenes from episodes of the show copied two chapters of her memoir, one detailing a romantic encounter with Escobar involving a revolver and another in which she recounts a meeting between Escobar and the head of a Colombian guerrilla organization. Defendants moved for summary judgment, arguing that the copying was limited to unprotectable historical facts and that to the extent her portrayal of those events could be considered protectable, the works’ expressions were not substantially similar in any event.  Vallejo cross-moved for summary judgment.  The district court agreed with defendants and granted summary judgment dismissing plaintiff’s claims.

For the purposes of the summary judgment motions, defendants conceded they had access to and copied factual material from plaintiff’s memoir and that the Narcos character Valeria Velez referred to plaintiff.  The question left for the court was whether the copied material included protectable elements of plaintiff’s memoir. 

With regard to the first scene, which involved a romantic encounter with Escobar, the court found that various similarities alleged by plaintiff did not actually exist.  For example, in the memoir, plaintiff verbally spars with Escobar, but in the television series, Velez’s reaction is submissive.  These differences, along with other differences in the sexual activity depicted in the two scenes, created different impressions of the power dynamics in the relationship, the court observed.  The court also detailed other differences, including how plaintiff/Velez is dressed, where she is situated and Escobar’s behavior.  Although there were some similarities in the two works ― the use of a blindfold and a revolver in foreplay and plaintiff/Velez’s arousal ― the court concluded these were historical facts and therefore not protectable.  In other words, plaintiff did not identify any “specific, original, non-factual portions” of her memoir that were copied in the corresponding Narcos scene.

The court reached a similar conclusion with regard to the second scene, which involved a meeting with the head of a Colombian guerrilla organization.  It highlighted several differences in the way the two works depicted the scene.  In the memoir, plaintiff attended the meeting, while in the series, Velez was not even present ― a difference that the court found “changes the tone of the scene.”  Plaintiff also claimed that the name of the Narcos episode depicting the meeting, “The Palace in Flames,” copied the title of the corresponding chapter in her memoir, “That Palace in Flames.”  But the court rejected this argument on the basis that short phrases are not copyrightable.  Once again, although the court did identify similarities in the two works, it concluded they all constituted unprotectable historical facts:  the fact of the meeting itself, the name of the guerrilla organization’s leader and how much Escobar supposedly paid to the leader for him to execute a raid on Escobar’s behalf.  That plaintiff’s memoir was the first to publicly report these facts did not alter the court’s analysis.

Finally, the court rejected plaintiff’s claims that Narcos in general appropriated her memoir’s themes of power and manipulation and her depiction of Escobar as both good and evil.  After observing that these were common concepts throughout literature, the court held that these were unprotectable ideas. 

Summary prepared by Frank D’Angelo and Erin Smith Dennis