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.