Netflix ‘Narcos’ Copyright Win Shows True Stories Hard to Shield

The author of a memoir that documented her romantic involvement may have had an easier copyright case against Netflix Inc. if she’d made it all up.

Netflix’s “Narcos” didn’t infringe Virginia Vallejo’s “Amado a Pablo, Oido A Escobar” (“Loving Pablo, Hating Escobar”) because much of what she sought to protect was unprotectable fact, the 11th Circuit affirmed Tuesday.

The court said that Netflix changed enough aside from those facts that it couldn’t convince a reasonable juror that infringement had occurred.

Underlying the case is when an author of an expressive work based on facts, such as a memoir or autobiography, can protect its creation. Lawyers said that Vallejo, a Colombian reporter whose book documented her romantic relationship with drug cartel leader Pablo Escobar, didn’t have a great case.

Copyright protects creative expressions, but not all elements can be protected. The question becomes tricky in nonfiction works where unprotected elements are interwoven and nearly inseparable from protectable expression, entertainment law lecturer Philippa Loengard of Columbia University said.

“Copyright covers merely the plot, but if the plot is fact that’s a problem. It covers characters, but if the characters are real people that’s a problem. It covers setting, but if the setting is where it happened, it’s impossible to separate,” Loengard said. “If we didn’t do that, no one could write a biography about someone who’s written an autobiography.”

But there are ways that a factual work can be infringed despite copyright law’s inability to cover factual events, law professor Lili Levi of the University of Miami said.

The selection and arrangement of unprotected elements can be protectable; even the compilation of a phone book cleared copyright’s low bar of creativity in the landmark 1991 Supreme Court case Feist Publications, Inc., v. Rural Telephone Service Co.

“While facts themselves are not considered protectable themselves, the compilations of facts, historical events and other accounts based on facts, can lead to admittedly thin levels of copyright protection,” Levi said. “If a defendant in such a case copies not just facts, but ways the facts described and even the order presented, then closer questions could arise.”

‘Frustrating to a Layman’

Vallejo’s lawsuit accused Netflix of infringing two particular scenes from her book: an intimate encounter with a revolver used as foreplay, and the planning and execution of a cartel raid on Colombia’s Palace of Justice. The court ruled that Netflix’s iterations of those scenes included substantial differences that doomed the copyright claims once factual components were removed.

Vallejo owns the rights to derivatives of her work, but not to the underlying facts, intellectual property attorney Joel Feldman of Greenberg Traurig LLP said. That means that even if Netflix copied dialogue and plot points presented as fact, word-for-word, that alone wouldn’t necessarily infringe, he said.

Netflix added much creativity of its own through visual choices, possibly giving it a transformative aspect that could help a fair use analysis—which wasn’t needed to decide the case—Feldman added.

But if Netflix copied too closely and tried to make the miniseries completely mirror the book, a different form of liability could arise in other areas, Loengard said.

She could protect the overall mood and pace of the story, but “it’s a very fine line” between that and the unprotected factual content, she said. That can be difficult for authors of works like autobiographies, without deep copyright law knowledge, to understand.

“It’s very fact-based, and there’s somewhat of an amorphous analysis that has to be made,” she said. “I can totally understand how this can be frustrating to the layman who feels they have told their story, and now it has been appropriated.”

The case is Vallejo v. Narcos Prods. LLC, 11th Cir., No. 19-14894, unpublished 10/27/20.