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Netflix’s “Narcos” Narrowly Avoids Copyright Infringement

Updated: Mar 17

By Agustin M. Barbara, Esq. and Daniel Lomba

The U.S. Court of Appeals for the Eleventh Circuit granted summary judgment in favor of Netflix in a Narcos copyright infringement lawsuit brought by Virginia Vallejo, a Colombian journalist and former girlfriend of drug lord Pablo Escobar.

Netflix’s “Narcos” Narrowly Avoids Copyright Infringement

The suit accused the producers and distributors of the show of two counts of copyright infringement, alleging that the company borrowed from Vallejo’s memoir, Loving Pablo, Hating Escobar, to inform two specific scenes, The Caress of a Revolver and That Palace in Flames.

The Copyright Act defines infringement as a violation of “the exclusive rights of the copyright owner.” 17 U.S.C. § 501(a). To plead a claim of copyright infringement, the plaintiff must allege: (1) it owns a valid copyright, and (2) that the defendant copied original elements of the copyright-protected work. As to the first element, a certificate of copyright is “prima facie evidence” of its validity and gives rise to the presupposition that the work contains a degree of originality. 17 U.S.C. § 410(c). As to the second element, copying is generally established by either (1) direct evidence, or (2) by showing the defendants had access to the copyrighted materials and showing that substantial similarity existed between the alleged infringing materials and the copyrighted materials.

Although Netflix conceded to copying portions of Vallejo’s book, they disputed 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 Eleventh Circuit engaged in a lengthy and detailed comparison of the two scenes and found that the elements Netflix copied were not protectable, original elements, but rather facts.

The Caress of a Revolver. Vallejo illustrates a sexual encounter with Escobar using a revolver as a seductive medium. Vallejo relished in the moment by not succumbing to the aggressive banter but instead rebutting with choice words displaying her authority. Vallejo described the caress of the revolver as “exquisite and sublime.” This passionate depiction ended in the two admiring Escobar’s collection of passports aiding his mischievous journey.

Netflix’s rendition of the scene varies substantially enough to avoid copyright infringement. In episode 103, The Men of Always, a revolver is used as an intimidation tool instead of a seductive aid. Vaellejo’s character is recreated as news reporter Valleria Velez. Escobar becomes frustrated with Velez when a newspaper article, Un Robin Hood Paisa, is published. The dialogue expresses disdain for Velez’s actions, which brought negative publicity to him. Escobar’s aggressive remarks are met with submissive tones and fear, deviating from Vallejo’s memoir. For instance, when Escobar declares that Velez will help him get elected to the Colombian government, she responds with a shuddering “Yes, Pablo, Yes.”

Vallejo contends that Netflix infringed on her creative expression of the historical facts by imitating the atmosphere and tone set forth by her memoir. The Eleventh Circuit disagreed, stating that “[t]he manipulations and power dynamic themes from the memoir are wholly absent from the Narcos episode.” Although it is clear that many facts derive from the memoir, that alone does not equal a violation – there must be a copying of the creative expression associated with the facts. Furthermore, the Eleventh Circuit declared themes of power and manipulation, along with the struggle of good and evil, are to be expected in a story starring a criminal kingpin.

That Palace in Flames. Vallejo discusses a moment in which Escobar met with Ivan Ospina, leader of Colombian Guerilla organization, M19. Vallejo’s presence at the meeting was described to create tensions amongst members of M19 due to Ospina’s inability to take his eyes off of her. The memoir recalled Ospina’s appearance as having a medium build with blunt features, a beard, and civilian clothes. The chapter portrays Vallejo and Ospina's conversations regarding how they share similar values, “refusing to call the rebels a band of criminals.”

In episode 104, The Palace in Flames, Escobar meets with Ospina, without Velez's presence. Ospina’s physical characteristics of a medium build with blunt features, a beard, civilian clothes, and even the title match the memoir’s description. However, a critical distinguishing factor is the tone and content of the conversations distinguishing the creative expressions. Escobar and Ospina exclusively discuss the burning of criminal evidence with an emphasized need for urgency.

The Eleventh Circuit concluded that the Narcos episode was not substantially similar to constitute copyright infringement due to the highlighted differences in the plot, theme, dialogue, and tone. Moreover, the Eleventh Circuit found that the episode could not develop the same way as the memoir because the absence of Velez materially altered the expression of historical facts.

Vallejo’s claim against Netflix was a valiant effort to prevail against a major corporation, but her zealous advocacy for her memoir’s historical accuracy was her downfall. As such, because historical facts are not original works of authorship, they are undeserving of copyright protection.

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