A federal judge in Southern Florida recently dismissed a copyright infringement case involving the popular Netflix show “Narcos.” See Miami Herald report here. The case was filed by author and journalist, Virginia Vallejo. Vallejo claimed that the show’s writers and producers copied parts of her book/memoir “Loving Pablo, Hating Escobar.” In her book, Vallejo writes about many things including her romance with Pablo Escobar, a notorious Colombian drug-lord. The case provides interesting legal lessons concerning copyright law. The case is Vallejo v. Narcos Production, LLC, Case No. 18 CV 23462-RS (S.D.Fla. November 8, 2019).

The first lesson is that historical facts are not copyrightable. In her lawsuit, Vallejo claimed that she had a copyright to certain historical facts about meetings and events that were only first reported in her book. However, copyrights do not extend to historical facts and data. Basically, under copyright law, no one can claim copyrights as to historical facts.

In the US, copyrights are governed by the Copyright Act. See 17 U.S.C. §101 et seq. Copyrights protect ORIGINAL works of authorship. Without question, Vallejo’s book is protected by copyright law. However, the descriptions of historical facts in her book are not. As the US Supreme Court has explained, this is because facts do not “owe their origin to an act of authorship.” Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884). This is true even if an author — like Vallejo — may have participated in the historical events and may be the first person to report those particular facts. Historical facts are not created or made or originated. Rather, they are discovered. Copyright law does not protect facts that are discovered.

Another lesson from the case is that the particular manner in which historical facts are laid out by an author CAN be original and, therefore, protected by copyright law. But, if the details are sufficiently different in another author’s description of the events, then no copyright infringement has occurred. In Vallejo’s case, she also argued that the producers and writers of “Narcos” show copied the MANNER in which she described the historical events in question. In particular, Vallejo claimed that the show appropriated her descriptions of a meeting she attended and a romantic scene between her and Escobar that involved use of a revolver.

In the end, however, the judge determined on summary judgment submissions that Vallejo’s claims had no merit. The court concluded that the television presentations of the historical events were sufficiently different so that there was no copyright infringement. For example, in her book, Vallejo describes a meeting between Escobar and a guerrilla leader with Vallejo being present. In that meeting, Escobar hired the guerrilla to attack the judicial offices of the Colombian Supreme Court to destroy evidence related to legal proceedings against Escobar. The Netflix version of the meeting was historically accurate in that it depicted a meeting between Escobar and a guerilla leader. However, the court found that the Netflix version of the meeting was substantially different than the one described in Vallejo’s memoir. The court noted that the dialog was different, the tone and tenor were different, and that a different woman was present at the meeting (not Vallejo). The court also highlighted differences in the settings and background. With respect to the romantic scene, the court noted similar types of differences. It was true that the Netflix version included use of a revolver, but that, by itself, was not an original concept that was copyrightable. As one example, the court noted that, in the book, Vallejo is described as not being fearful of Escobar’s use of the revolver while, in the Narcos version, the female character is shown as being afraid and victimized. In the end, the court held that no copyright infringement had occurred, and Vallejo’s case was dismissed.

The Idea-Expression Dichotomy in Copyright Law

The Narcos case illustrates one of the most fundamental principles in copyright law: the idea-expression dichotomy. Copyright protects the specific expression of ideas, not the ideas themselves. This principle is codified in the Copyright Act at 17 U.S.C. § 102(b), which provides that copyright protection does not extend to “any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”

Courts frequently apply the idea-expression dichotomy in entertainment litigation. The underlying premise of a story — a romance with a drug lord, a meeting between criminals — is an idea that cannot be owned. What can be owned is the specific creative choices an author makes: the dialogue, the characterization, the sequence of scenes, the unique perspective. To prevail in a copyright infringement case, a plaintiff must show that the defendant copied the protected expression, not merely the same underlying ideas or historical events.

Related to this is the concept of “scenes a faire,” which refers to standard scenes, stock characters, or routine elements that flow naturally from a common premise. Courts regularly deny copyright protection to these elements. Two stories about drug trafficking will naturally include scenes of law enforcement investigation, violence, and money. The fact that both works depict such scenes does not by itself demonstrate copying of protected expression.

The Substantial Similarity Test

Even where a plaintiff can show access to the original work and some similarities between the works, the key legal question is whether the copying was of protected expression and whether the works are “substantially similar.” Courts in the Eleventh Circuit — which covers Florida, where the Narcos case was filed — analyze substantial similarity by filtering out unprotectable elements and comparing only the remaining protectable expression. This “filtration” approach significantly narrows the universe of material that can support an infringement claim.

The substantial similarity test is an objective analysis performed by the court, but courts also consider whether an ordinary observer would find the works similar in their protected expression. Where, as in the Narcos case, the defendant’s work presents the historical events in a substantially different manner — different dialogue, different characters, different emotional framing — the court will find no substantial similarity even if both works address the same underlying events.

Practical Lessons for Authors, Creators, and Businesses

The Narcos case carries several practical lessons. First, if you believe a television show, film, or other creative work has copied your book or original content, the analysis is more nuanced than simply asking whether the works address similar events or themes. You must identify specific elements of your protected expression that were reproduced in the allegedly infringing work.

Second, register your copyrights early. Had Vallejo’s claims been stronger on the merits, she would have been far better positioned if her copyright had been registered with the U.S. Copyright Office before the infringement occurred. Registration is a prerequisite to filing a copyright infringement suit in federal court, as confirmed by the Supreme Court in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296 (2019). Early registration also preserves the right to statutory damages and attorneys’ fees.

Third, before filing suit, have a copyright attorney perform a careful comparison of the works at issue. Courts scrutinize copyright claims closely, and a case that appears strong at first glance may be significantly weakened once unprotectable elements are filtered out. Filing a weak infringement claim exposes a plaintiff to a fee-shifting award under 17 U.S.C. § 505 if the court finds the claims were objectively unreasonable.

If you have questions about protecting your copyrights and other intellectual property, contact the copyright lawyers at Revision Legal at 231-714-0100.