While Netflix's Narcos has certainly been a hit show for the streaming platform, it's still a bit surprising that there has been so much intellectual property strife surrounding the show. To date, the most notable IP dispute has been Pablo Escobar's brother's attempt to sue Netflix for one billion dollars. As Netflix was having Narcos actors pretend to threaten to shoot the public for pirating the show, Roberto Escobar was busy making no headway with his lawsuit, eventually dropping it.
But another lawsuit had been filed against Narcos as well, by a famous Colombian journalist who had a years-long affair with El Jefe. Virginia Vallejo wrote about her time with Escobar and the affair she had with him in a memoir, scenes from which were depicted in the Netflix series. She went on to claim that such depictions constituted copyright infringement. Unfortunately for her, a Miami judge ruled for Narcos producers on summary judgement, finding that the Netflix show had depicted only facts that were similar to Vallejo's accounts, while the rest of the depictions in two scenes the journalist calls out were not substantially similar to her retelling in her book.
The ruling itself is a rather, ahem, steamy read as far as these things go. The reason for that is that one of the scenes in question is a bedroom scene involving a revolver being used in new and creative ways.
Defendants argue that the only similarities are: (1) Plaintiff is blindfolded with a black blindfold; (2) Escobar uses a gun to caress her neck and chest while speaking in a menacing tone; and (3) she appears aroused. Defendants maintain that these similarities are not protectable because they are nothing more than facts; merely because Plaintiff’s Memoir was the first time that these facts were made public does not make them protectable.
Plaintiff contends that there are additional similarities, including the elegant bedroom, that both Plaintiff and the Velez character are bound to furniture, Plaintiff and Velez are at the mercy of Escobar, Escobar engages in aggressive banter with Plaintiff and Velez and both respond in a submissive manner, Plaintiff and Velez are not afraid of Escobar, Escobar grabs both by the hair,Escobar touches their bare skin with a gun as sexual foreplay, and Plaintiff and Velez throw their heads back sighing and moaning with pleasure. However, comparing the Plaintiff's Memoir and the Narcos Revolver Scene establishes that not all of these similarities actually exist and the similarities that do exist are ideas and facts.
The second scene in question is ruled on in the same way. Essentially what's happening here is that Vallejo claims that Netflix's depiction is so similar to her account in her book that it's copyright infringement.
Netflix doesn't argue that copying didn't occur but claims all examples of copying were of factual information, buttressed by Vallejo's claims that the accounts in her book are all factually true. The rest of the makeup of the scenes, the staging, scenery, exact dialogue, and feel of the scene all contain substantial differences with Vallejo's book.
It's hard to see how the world could operate had the Court ruled any differently. Is the expectation that an artistic work telling the story of a historical figure can't retell the factual occurrences surrounding that figure if some third party already put those facts down in a book somewhere? Were that the case, depictions of historical figures could almost certainly not exist.
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