12:30pm PT by Eriq Gardner
Netflix Finally Beats Journalist's Copyright Suit Over 'Narcos'
It took a few attempts, but Netflix and Gaumont Television finally prevailed against a Colombian journalist who alleged Narcos infringed her memoir about Pablo Escobar. On Friday, a Florida federal court granted summary judgment to defendants. The ruling avoids a trial that was scheduled to begin this month.
The plaintiff in the case was Virginia Vallejo, who wrote about her close relationship with the notorious drug kingpin in the 1980s. A popular television journalist, her memoir was titled Loving Pablo, Hating Escobar, which itself became the basis for a film starring Javier Bardem and Penelope Cruz in 2017.
In May, a federal judge trimmed her claims, finding that much of the allegedly infringed expression in her book wasn't protectable. But the judge did allow Vallejo to proceed more narrowly, particularly with respect to Vallejo's description of Escobar's intimacy with a gun.
The defendants then attempted to kill the lawsuit with the argument that Vallejo's deal with movie producers for rights to her memoir had divested her of standing to assert a copyright claim. But the judge decided that at the time that Narcos was released by Netflix in 2016, the movie option hadn't been exercised, and thus, Vallejo still could sue.
Vallejo got close to trial, but she still needed to overcome one last hurdle — a summary judgment motion where the judge wouldn't only address the plausibility of her claims, but also whether there were any triable issues of fact when considering the evidence.
This leads to U.S. District Court Rodney Smith's examination of substantial similarity between Loving Pablo and Narcos.
Here, for example, is some deconstruction about the respective intimacy scenes in each of the works.
"The atmosphere, or overall feel, of each of the scenes is very different," writes the judge. "In the Memoir, contrary to Plaintiff’s argument, Plaintiff does not appear afraid of Escobar and does not respond to his aggressive banter in a submissive manner; instead, she responds by verbally sparring with him.... Plaintiff also spurs Escobar on, telling him that being caressed by a gun is 'exquisite' and 'sublime.' In contrast, in the Narcos scene Velez does respond submissively; there is no verbal sparring or challenges to Escobar, as in the Memoir. Velez does not spur him on. Plaintiff also stops Escobar from going any further with the gun and he relents, unlike in the Narcos scene where Escobar uses the gun to bring Velez to a climax. The Memoir paints a picture of two people holding equal power over each other. In Narcos, Velez may be a willing participant but she does not hold the power in the relationship. Velez simply submits to Escobar, telling him that she will do anything he wants."
The judge also addresses alleged similarities between the memoir and Narcos in another scene related to Escobar's meeting with one of the heads of M-19, a Colombian guerrilla organization. See the full opinion for that.
As for the works in general, and Vallejo's suggestion that Narcos tread on her themes of power and manipulation, Judge Smith has a few words there, too.
"[S]uch themes, or ideas, are not protectable," he writes. "Moreover, themes of power and manipulation would be expected in any work about a ruthless criminal who rises to become one of the richest men in the world, as would themes of men who are both good and evil, which can be found throughout literature."