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IP/Entertainment Case Law Updates

Vallejo v. Narcos Productions LLC

Holding that portions of Netflix’s Narcos series are not substantially similar to journalist’s memoir regarding romantic relationship with Pablo Escobar, Eleventh Circuit affirms summary judgment dismissing copyright infringement claim.

Virginia Vallejo, a Colombian journalist and former mistress of notorious Colombian drug cartel leader Pablo Escobar, sued the producers and distributors of the Netflix series Narcos for copyright infringement, alleging that two scenes from the show copied portions of her memoir, Amando a Pablo, Odiando a Escobar (Loving Pablo, Hating Escobar). 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 the Colombian guerrilla organization M-19. The district court granted defendants’ motion for summary judgment, holding that any similarities between the works constituted historical facts and were therefore unprotectable. (Read our summary of the district court’s decision here.) On plaintiff’s appeal, the Eleventh Circuit affirmed.

The court rejected plaintiff’s argument that her memoir is a fictional collective work of historical research regarding Escobar, characterizing the argument as an attempt to avoid well-settled copyright precedent that provides that works that are considered nonfiction or a compilation of facts receive only thin copyright protection. Vallejo, the court emphasized, had testified at her deposition that the facts reported in her memoir are true. The court explained that although fictional works based on historical research may receive more copyright protection than a pure nonfiction work or a compilation of facts, the historical facts contained within the fictional work remain unprotected. Accordingly, the court concluded that the facts in Vallejo’s memoir, standing alone, do not enjoy copyright protection and could be freely copied by defendants.

The court recognized Vallejo’s copyright protection in the manner in which the facts were expressed in her memoir—the memoir’s “characters, theme, plot, setting, and mood and pace”—including the magical realism style in which she wrote her memoir and the alleged scenes and dialogue that she recreated after 20 years from her own memory. However, the court found that defendants did not copy any of these elements in the two allegedly infringing scenes and, on that basis, determined that the parties’ works are not substantially similar. With respect to the first allegedly infringing scene of Narcos, 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, Vallejo verbally spars with Escobar, but in the television series, the character who was apparently based on Vallejo is submissive. The court also highlighted several differences in the parties’ depictions of the second allegedly infringing scene of Narcos, which involved a meeting with the head of M-19. Although Vallejo argued that the name of the Narcos episode depicting this scene, “The Palace in Flames,” copied the title of the corresponding chapter in Vallejo’s memoir, the court rejected this argument on the basis that short phrases are not copyrightable.  

Vallejo additionally argued that the district court failed to recognize “the legal distinction between historical and non-historical facts in assessing whether the facts she reported in her memoir should be given copyright protection,” positing that “non-historical facts” are protected by copyright law “because they are personal.” The court, however, rejected this legal distinction, pointing to the Supreme Court’s decision in Feist Publications, Inc. v. Rural Telephone Service Co., which held that all “‘facts—scientific, historical, biographical, and news of the day’—do not receive copyright protection.” In any event, the court noted that the facts reported in Vallejo’s memoir were likely of historical significance given the media scrutiny to which Escobar’s life had been subjected.

Finally, the court rejected Vallejo’s argument, based on the Ninth Circuit’s 1941 decision in Kustoff v. Chaplin, that the correct test to measure whether two works in different media are substantially similar, and whether infringement of a literary story has occurred, is whether “an ordinary observer is led to believe that the film is a picturization of the story.” As the court explained, the Kustoff test no longer applies, and “[r]ecent decisions from the Ninth Circuit have not applied such a modified standard, and have instead used the same substantial similarity test used in our circuit.”

Summary prepared by Frank D’Angelo and Nathalie Russell