Free Speech

Narcos TV Show Doesn't Infringe Virginia Vallejo's Memoir

A good illustration of a basic principle: Facts are not protected by copyright.

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Virginia Vallejo sued Narcos Production LLC, Netflix, and Gaumont Television USA LLC, claiming that two episodes from Narcos were substantially similar to parts of her memoir of her affair with Pablo Escobar. No, said an Eleventh Circuit panel (Judges Bert Jordan, Britt Grant & Robert Luck) today in Vallejo v. Narcos Productions, because there's no copyright in facts:

"[C]opyright protection extends only to an author's expression of facts and not to the facts themselves." An author "may not claim that the facts are original with him although there may be originality and hence authorship in the manner of reporting, i.e., the expression, of the facts." "[T]he mere use of the information contained in a [work] without a substantial copying of the format does not constitute infringement." A person who reports new facts for the first time cannot claim copyright protection in the further dissemination of those facts….

Ms. Vallejo has repeatedly admitted that the facts reported in her memoir are true…. Ms. Vallejo has copyright protection in the way that she set her "characters, theme, plot, setting, and mood and pace." … [But] we conclude that the defendants used unprotectable facts from Ms. Vallejo's memoir and did not copy her expression of those facts because the plot, setting, mood, and the characters' interplay are not substantially similar….

Ms. Vallejo also contends that the district court failed to recognize the legal distinction between historical and non-historical facts in assessing whether the facts she reported in her memoir should be given copyright protection. Essentially, she asserts that so-called historical facts lack copyright protection because they are newsworthy and that so-called non-historical facts are protected by copyright law because they are personal. We are not persuaded by Ms. Vallejo's distinction.

First, we are skeptical of Ms. Vallejo's argument that the facts she reported regarding Mr. Escobar in the chapters at issue are not of historical importance. Given that Mr. Escobar is considered one of the biggest drug lords in the history of Colombia, and that his life has been fully scrutinized by the media, we expect that most facts about Mr. Escobar, particularly new ones, will receive national and international attention.

Second, we are not convinced that the purported distinction between historical facts and non-historical facts is legally sound. Ms. Vallejo fails to cite any cases or authorities that support her proposition. The cases that Ms. Vallejo relies on do not differentiate between historical facts and non-historical facts, and merely stand for the unremarkable proposition that a defendant cannot copy verbatim the plaintiff's work even if the work is considered non-fiction.

Third, in Feist the Supreme Court stated that "facts—scientific, historical, biographical, and news of the day" do not receive copyright protection. Feist (denying protection to historically non-significant telephone numbers). We decline the invitation to distinguish between so-called historical facts and so-called non-historical facts for purposes of copyright protection.

Ms. Vallejo next claims that the district court erred by not applying a modified substantial similarity standard when assessing whether substantial similarity exists between works in two different types of media. She relies on Kustoff v. Chaplin (9th Cir. 1941), and states that the correct test to measure whether two works in different media are substantially similar, and whether infringement of a literary story has occurred, is whether "an ordinary observer is led to believe that the film is a picturization of the story." …

We do not believe that the test advanced in Kustoff still applies. Recent decisions from the Ninth Circuit have not applied such amodified standard, and have instead used the same substantial similarity test used in our circuit. We therefore refuse to divert from our current substantial similarity test.

Our First Amendment Clinic filed an amicus brief arguing in favor of this result, on behalf of Profs. Mark Lemley, Marc McKenna, Joseph Scott Miller, Jennifer Rothman, Rebecca Tushnet, and me. Thanks to students Tanner Laiche, Rachel Levin, and Aaron Schroeder for their work on the brief; and thanks, as always, to Scott & Cyan Banister for their generous support of  the Clinic.

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  1. Interesting.

    How does this tie in with situations where a non-famous person is involved in a noteworthy event, and then sells the rights to his story? If the facts of his story aren’t protectable, what is the buyer of the rights to the person’s story getting?

    1. 1. First, there’s nothing illegal about paying for news. It isn’t generally done by journalists, but publishers certainly do it.

      2. While facts aren’t copyrightable, particular expressions of facts could be.

      Here’s an example, from an actual screenwriter. Pablo Fenjves, who testified as a witness at the OJ trial and later ghost-wrote OJ’s confession, “If I Did It”, referred to the barking of Nicole’s dog, on the night of the murder, as a “plaintive wail”. The fact that Fenjves heard the dog barking after OJ committed the murders is not copyrightable. It’s a fact. But a book full of literary descriptions a la “plaintive wail”, or a treatment, or a screenplay, or even a recording of Fenjves expressing them, could be copyrightable so long as it contained sufficient and sufficiently original expressions.

    2. They are getting that persons private intimate account of the thing.

      1. Right. They are paying for the disclosure, which the person is free to not disclose. But, yes, someone else can then take the same facts and publish them in a story without paying anything.

        1. Thanks, rsteinmetz and Bored Lawyer. That’s helpful.

  2. So, if the “non-historical” facts that, apparently, no one else knew about were not facts but made up, then she would have had a case?

    1. Maybe. Although if she had earlier claimed the facts were true, that could be used to impeach her claims.

      And that also relates to something copyright holders really did, especially in the years before the Feist case held that compilations of data were not copyrightable.

      What they used to do was intentionally insert erroneous information into those compilations. So they would add some phony names to the phone book, with phony addresses and numbers. That’s how they caught people copying the white pages.

      1. “What they used to do was intentionally insert erroneous information into those compilations”

        This was done in other contexts, with sometimes hilarious results. Mapmakers would add in fictional road connections, and drivers would sometimes end up in the middle of a swamp.

    2. Actually, no. There’s a doctrine called the “asserted truth” doctrine, sometimes called “copyright estoppel,” that says that you can’t publish a purportedly truthful account, secretly include some made up facts, and then play gotcha and sue someone for infringement when they copy them.

      1. That’s right, but only if the author actually asserted truth.

      2. George Carlin objected to the use of the term “road rage” because he just wanted a general, all-purpose rage for use on the road and off it.

        By analogy, why should we have copyright estoppel instead of just a general, all-purpose estoppel?

  3. Forgive neurodoc for going a bit OT, but…

    Who knows how hippopotamuses, an animal not native to the Western Hemisphere, came to range freely and prosper to this day in Colombia, a country better know for the legendary Juan Valdez and his trusty mule?

    1. Escobar, that crazy hippo-loving drug kingpin.

      1. I did not know about the Hippos! Wow!

    2. https://abcnews.go.com/International/wireStory/colombians-grapple-big-problem-wandering-hippos-69162939

      Sarcastr0, congratulations for answering today’s daily double question about Pablo Escobar and the Rio Magdalena hippos. I don’t know that he had a special fondness for hippos, but he wanted a private zoo with a representative collection of animals worthy of his stature in Colombia, especially in Medellin, and hippos were part of the package. When Pablo was no longer around to see the folly maintained, everything fell into disrepair, but the original 4 hippos he imported found the weather and property remarkably salubrious in their Rio Magdalena neighborhood, so they elected to raise their offspring there and today they number >80. Local fishermen are not happy about these interlopers, but the hippos let them know who is in charge now.

      This would all count as “historical” or “non-historical” facts for copyright purposes? How about details of Pablo and Virginia’s sex life? Pablo’s food preferences? What he gave her for birthday presents? How about details of his drug details and operations? The names of all the Colombian officials he corrupted, including presidents, might be of come interest, though it might be easier to list those who were not corrupted by him and the other narco-terrorists.

  4. He should be happy about that. Narcos is a story that has been told, and told better, many times already.

  5. The biographer of French composer Jean Philippe Rameau was mad when his book got ripped off by some movie producers. All the producers had to do was add a few incidents, change the spelling to Rambo, and it’s somehow not a copyright violation. Such an injustice.

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