Order in Netflix Lawsuit is a Reminder of the Bounds of Copyright Protection

Virginia Vallejo, a well known Colombian journalist and media personality, authored the memoir “Loving Pablo, Hating Escobar”.  The book is a factual account of her romantic relationship with Pablo Escobar and a chronicle of the rise of the Colombian drug cartel.

Vallejo claimed that certain scenes in the television series Narcos infringed the copyright in her book, and she sued Narcos Productions, the producer of the series, Gaumont Television, the series’ distributor, and Netflix, the U.S. broadcaster.  Specifically, Vallejo claimed that certain scenes in the series were copied from various chapters in her book, including one that describes a sexual encounter between Vallejo and Escobar involving a handgun, and another that recounted a meeting between Escobar, Vallejo and Ivan Marino Ospina, one of the heads of a Colombian guerilla organization.  Vallejo claimed that the infringing scenes from the first season of Narcos were, respectively, a sex scene in episode three between Escobar and a character named Valeria Velez (who was based on Vallejo) involving a gun, and a scene from the fourth episode in which Escobar meets with a man named “Ivan” who is a leader of a Colombian guerilla organization.

To establish a claim of copyright infringement, a plaintiff must show “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.”  With the first element conclusively established, the court focused on the second.  In order to establish the second element, the plaintiff must show proof that (1) the defendant, as a factual matter, copied portions of the plaintiff’s work; and (2) that the elements copied are protectable.  The defendants conceded copying portions of Vallejo’s book; they disputed, however, that the material they copied was legally protectable, or that the two works are substantially similar.

In reviewing the scenes and chapters at issues, the court engaged in a lengthy and detailed comparison of the two scenes and found that the elements the defendants copied were not protectable, original elements, but rather facts.  As to the sex scene, the only element copied was the fact that Escobar and Vallejo/Velez engaged in foreplay with a gun; the manner in which this fact was conveyed in the book and series were significantly different from each other.  In the book, Vallejo is not afraid of Escobar; she verbally spars with Escobar, goads him on and then demands him to stop.  In the series, Velez is submissive, gives in to Escobar and allows the gun foreplay to continue.  The court noted additional ways that the scene and chapter are significantly different.  In conclusion, the court held that “[t]he idea of a sex scene involving a gun is not protectable.”

With regard to the meeting scene, the court, through a detailed comparison, found there to be no substantial similarity between the protectable elements.  The fact that Escobar met with the head of a Colombian guerilla organization, paid him $2 million to raid the Supreme Court of Colombia prior to Escobar’s hearing on his extradition to the U.S. in order to destroy all of the evidence against Escobar, that the raid occurred and the evidence against Escobar was destroyed are all historical facts and are not protectable under Copyright.  The fact that Vallejo’s book was the first to make some of these facts public does not change the analysis.

The court’s holding is a reminder of the bounds of copyright protection.  Every

idea, theory, and fact portrayed in a copyrighted work becomes instantly available for public exploitation at the moment of publication.  It’s the manner of expression of the facts where copyright protection takes hold.