By Robert B. Barnett Jr., J.D.
Substantial similarity was lacking because the TV show used reported facts in combination with tone, dialogue, and themes that were different from the book.
Scenes in the Netflix drama Narcos did not infringe the copyright of Virginia Vallejo, who wrote a memoir about her relationship with Pablo Escobar, because historical facts are not copyrightable, and the plot, setting, theme, mood, dialogue, and tone of the TV series were not substantially similar to those elements in the book, the Eleventh Circuit has ruled in an unpublished opinion. The appellate court affirmed a Florida federal district court’s grant of summary judgment in favor of the Narcos producers. The Eleventh Circuit also rejected any purported distinction between historical facts and non-historical facts, noting that the Supreme Court has not many any such distinction for purposes of copyright protection. The appellate court affirmed that the proper standard for determining infringement is substantial similarity, rejecting an argument that a modified standard of "whether an ordinary observer is led to believe that a film is a picturization of the story" be used when evaluating works from different media (Vallejo v. Narcos Production LLC, October 27, 2020).
Background. Virginia Vallejo sued Narcos Productions LLC, Netflix, and others, alleged that the television show Narcos infringed her 2013 memoir Amando a Pablo, Odiando a Escobar (Loving Pablo, Hating Escobar), a retelling of her 1983-1987 relationship with the drug lord. The Florida federal court granted summary judgment to the Narcos producers, ruling that the scenes in the TV show were not substantially similar to the scenes depicted in the book. She appealed the decision to the Eleventh Circuit in Atlanta.
The appeal concerned two scenes in the show that were alleged to have infringed the book’s copyright. The first scene, called "The Caress of a Revolver" in the book and Episode 103 in the TV show, depicted a sex scene between Escobar and Vallejo (both renamed in the show) in which Escobar menaces Vallejo with a loaded gun. The second scene, called "The Palace in Flames" in the book and Episode 104 in the TV show, depicted a conversation in which Escobar paid $2 million to another drug cartel to set the Palace of Justice on fire to destroy incriminating evidence. The TV show producers acknowledged that they had access to the memoir and that they had copied from it.
Copying. To succeed on her claim, having established that the TV producers had used the book, the memoirist was required to establish that the TV show copied constituent elements of her book. The copying inquiry looks at whether a substantial similarity existed between what was written in the book and what was depicted in the TV show.
Protected expressions. Before determining substantial similarity, the Eleventh Circuit sought to separate protected expressions from unprotected expressions. Copyright protection, of course, extends only to expressions of facts and not to the facts themselves. Because the memoirist contended that the facts in her book were true, the events depicted in the book were unprotected. The fact that she may have reported them first was irrelevant to copyright law. She could not copyright the facts she reported any more than a newspaper could copyright the facts in a scoop it first reported. The protected elements, therefore, were the ways she expressed the facts, such as her theme, plot, setting, mood, and pace. In addition, she had the right to copyright the writing style she used, which is known as magical realism.
Substantial similarity—Episode 103. Closely comparing the book chapter and the TV show scene portraying the sex scene, the Eleventh Circuit concluded that the two were not substantially similar. The tone, for example, was different. In the book, the sex scene was depicted as one in which Vallejo challenged Escobar, forcing him to alter his behavior. In the TV show, the female character was far more submissive. The two scenes occurred in different settings. The subjective observations and the character exchanges were different. The mood was different, with the book portraying a menacing Escobar while the TV show had him begging for help in running for Congress. As a result, the appellate court concluded, the plot, setting, mood, and character interplay were not substantially similar. The lower court, therefore, did not err when it granted summary judgment to the Narcos producers on what was depicted in Episode 103.
Substantial similarity—Episode 104. Again closely comparing the book chapter and the TV show scene involving the $2 million offer, the Eleventh Circuit concluded that no substantial similarity existed. Some of the alleged similarities were actually facts. For example, the fact that both the book and the TV show involved a $2 million offer and both had similar physical descriptions of the other drug lord did not constitute copyright infringement because they were facts. Once again, the court said, the plot, theme, dialogue, and tone were different. For example, in the TV show, the Vallejo character was not present for the discussions, as she was in the book. Instead, the TV show introduced a different female character, who was not in the book. Thematic elements, such as the other drug lord’s leering looks at Vallejo, were absent from the TV show. The dialogue and tone were also different, with the TV show, unlike the book, focusing solely on the attack on the Palace of Justice. As a result, the Eleventh Circuit concluded that the lower court did not err when it granted summary judgment for lack of substantial similarity in Episode 104.
Non-historical facts. Having affirmed the lower court’s ruling, the court addressed an issue the memoirist raised in her appeal involving non-historical facts. She asked the appellate court to distinguish between historical facts, which are not copyrightable, and non-historical facts, which presumably are copyrightable. She alleged that non-historical facts were un-newsworthy personal facts. First, the appellate court concluded that any facts about Escobar, however personal, would be newsworthy because of his notoriety. Second, no existing case law supported the distinction. Third, the Supreme Court has said that the infringement analysis applies to all "facts" (Feist Publ’n, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 347-348 (1991)). The Eleventh Circuit, therefore, refused to adopt the distinction.
Modified standard. The memoirist also asked the Eleventh Circuit to adopt a modified substantial similarity standard when comparing works from different media. Citing a Ninth Circuit opinion from 1941, the memoirist called for a standard that asked "whether an ordinary observer is led to believe that the film is a picturization of the story." The Eleventh Circuit, however, concluded that the modified standard from 1941 no longer applied because the Ninth Circuit has been using the same substantial similarity test used in the Eleventh Circuit. The Eleventh Circuit refused to "divert from our current substantial similarity test."
The Eleventh Circuit, therefore, affirmed the lower court’s grant of summary judgment to the Narcos producers.
This case is No. 19-14894.
Attorneys: Robert Houpt Thornburg (Allen Dyer Doppelt Milbrath & Gilchrist, PA) for Virginia Vallejo. Louis Peter Petrich (Ballard Spahr, LLP) for Narcos Productions LLC, Netflix, Inc. and Gaumont Television USA LLC.
Companies: Narcos Productions LLC; Netflix, Inc.; Gaumont Television USA LLC
MainStory: TopStory Copyright GCNNews AlabamaNews FloridaNews GeorgiaNews
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