Judge Recommends Attorneys’ Fees for Netflix in ‘Narcos’ Case

Netflix Inc. should be awarded over $240,000 in attorneys’ fees for defending against copyright infringement claims brought by a Colombian journalist over its show “Narcos,” a magistrate judge recommended in Miami federal court.

Virginia Vallejo should have known that her claims were objectively unreasonable when she refiled them despite being told copyright protection doesn’t extend to facts, Magistrate Judge Lauren Louis said Monday in the U.S. District Court for the Southern District of Florida.

Vallejo’s memoir “Amando a Pablo, Odiando a Escobar” describes her relationship with Pablo Escobar and the rise of the Colombian cartels. “Narcos,” which is about the Colombian drug trade, features a similar journalist character named Valeria Velez.

The complaint alleged that three “Narcos” scenes infringed copyrights in her book: an intimate encounter involving Escobar and a gun, a meeting between Velez and Escobar’s wife, and the planning of a raid on Colombia’s Palace of Justice. The court initially dismissed Vallejo’s claims over the meeting and planning scenes.

Vallejo then refiled based only on the revolver and planning scenes, and the court ruled that any common elements between the show and the book were factual and not covered by copyright law.

“It is the rule rather than the exception for a defendant as the prevailing party to receive fees,” the magistrate said. “Plaintiff has not shown she is an exception to the rule because Defendants had obtained a high degree of success on the merits and Plaintiff’s claims were not objectively reasonable.”

The unreasonableness of Vallejo’s claims “should have been made clear to her” on the first dismissal order, where the court made it clear that facts aren’t copyrightable, the magistrate said.

The fact that Vallejo’s revolver scene claim survived the motion to dismiss didn’t mean it was reasonable, the magistrate said, noting that the factual similarities between the chapter and “Narcos” were only known to her and not the court at that point in the case.

Vallejo’s filing of a nearly identical claim based on the planning scene after it had already been dismissed also cut toward awarding fees.

Allen, Dyer, Doppelt, Gilchrist PA represents Vallejo. Holland & Knight LLP and Ballard Spahr LLP represented Netflix.

The case is Vallejo v. Narcos Prods. LLC, S.D. Fla., No. 1:18-cv-23462, report and recommendation 8/24/20.