Narcos Defeats Yet Another Silly Copyright Lawsuit

from the just-the-facts dept

While Netflix’s Narcos has certainly been a hit show for the streaming platform, it’s still a bit surprising that there has been so much intellectual property strife surrounding the show. To date, the most notable IP dispute has been Pablo Escobar’s brother’s attempt to sue Netflix for one billion dollars. As Netflix was having Narcos actors pretend to threaten to shoot the public for pirating the show, Roberto Escobar was busy making no headway with his lawsuit, eventually dropping it.

But another lawsuit had been filed against Narcos as well, by a famous Colombian journalist who had a years-long affair with El Jefe. Virginia Vallejo wrote about her time with Escobar and the affair she had with him in a memoir, scenes from which were depicted in the Netflix series. She went on to claim that such depictions constituted copyright infringement. Unfortunately for her, a Miami judge ruled for Narcos producers on summary judgement, finding that the Netflix show had depicted only facts that were similar to Vallejo’s accounts, while the rest of the depictions in two scenes the journalist calls out were not substantially similar to her retelling in her book.

The ruling itself is a rather, ahem, steamy read as far as these things go. The reason for that is that one of the scenes in question is a bedroom scene involving a revolver being used in new and creative ways.

Defendants argue that the only similarities are: (1) Plaintiff is blindfolded with a black blindfold; (2) Escobar uses a gun to caress her neck and chest while speaking in a menacing tone; and (3) she appears aroused. Defendants maintain that these similarities are not protectable because they are nothing more than facts; merely because Plaintiff’s Memoir was the first time that these facts were made public does not make them protectable.

Plaintiff contends that there are additional similarities, including the elegant bedroom, thatboth Plaintiff and the Velez character are bound to furniture, Plaintiff and Velez are at the mercy of Escobar, Escobar engages in aggressive banter with Plaintiff and Velez and both respond in a submissive manner, Plaintiff and Velez are not afraid of Escobar, Escobar grabs both by the hair,Escobar touches their bare skin with a gun as sexual foreplay, and Plaintiff and Velez throw their heads back sighing and moaning with pleasure. However, comparing Plaintiff’s Memoir and the Narcos Revolver Scene establishes that not all of these similarities actually exist and the similarities that do exist are ideas and facts.

The second scene in question is ruled on in the same way. Essentially what’s happening here is that Vallejo claims that Netflix’s depiction is so similar to her account in her book that it’s copyright infringement. Netflix does not argue that copying didn’t occur, but claims all examples of copying were of factual information, buttressed by Vallejo’s claims that the accounts in her book are all factually true. The rest of the makeup of the scenes, the staging, scenery, exact dialogue, and feel of the scene all contain substantial differences with Vallejo’s book.

It’s hard to see how the world could operate had the court ruled any differently. Is the expectation that an artistic work telling the story of an historical figure can’t retell the factual occurrences surrounding that figure if some third party already put those facts down in a book somewhere? Were that the case, depictions of historical figures could almost certainly not exist.

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Comments on “Narcos Defeats Yet Another Silly Copyright Lawsuit”

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Anonymous Coward says:

Re: Re: Re:

If John Smith lived in Tudor England he’d be up there screaming that Shakespeare should be publicly executed for his depictions of Julius Caesar. But we’re dealing with someone who thinks the police would give themselves a rectal examination to defend the honor of a default pseudonym used by an obscure website’s comment system. It’s not like John Smith’s in the running for the "Most Grounded in Reality" reward here…

Anonymous Coward says:

Re: Re:

So the courts are brilliant when the nonattorneys who write here like the outcome

You’re an attorney?

but they are "ignorant of tech" when they don’t.

…Okay, the point of this comment was what, exactly? Did you think the correct ruling was to rule that Netflix was at fault? For putting a scene that reads like terrible Twilight fanfiction to screenplay?

This is called slanted language in the Boolean world.

And the world we actually live in has nuances, context, and other complexities beyond the black-and-white "Boolean" world you think this is. Huh. Imagine that!

This comment has been deemed insightful by the community.
PaulT (profile) says:

Re: Re:

"This is called slanted language in the Boolean world."

Luckily for you, we don’t live in that world, we live in the real world where things tend to be a bit more nuanced. Although, this case does seem to be a little more open and shut than most. But, even a slam dunk case has room for some nuance.

Please, since you’re so much more of a great legal mind than anyone here, why should Netflix have been held liable in this particular lawsuit? Where does the above summary get it wrong?

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