On October 27, 2020, the Eleventh Circuit affirmed a district court’s summary judgment ruling that scenes from the Netflix series Narcos did not infringe a Colombian journalist’s copyrighted memoir, agreeing that “no reasonable jury could find that the two works are substantially similar.” See Vallejo v Narcos Productions LLC, No. 19-14894, 2020 WL 6281501, at *9 (11th Cir. Oct. 27, 2020) (per curiam).

Virginia Vallejo, a Colombian journalist, authored the memoir Amando a Pablo, Odiando a Escobar (Loving Pablo, Hating Escobar). In the memoir, Ms. Vallejo recounted her romantic affair with infamous drug trafficker Pablo Escobar and described the rise of Colombian drug cartels. Two chapters of the memoir were considered in the case: “The Caress of a Revolver” and “That Palace in Flames.”

The chapter titled “The Caress of a Revolver” told the story of a romantic encounter between Ms. Vallejo and Mr. Escobar, in which Mr. Escobar used a gun. Ms. Vallejo alleged that episode 103 of Narcos included a scene that is similar to “The Caress of a Revolver,” because it is a sexual scene where Mr. Escobar used a gun to caress a character who is supposed to be Ms. Vallejo.

“That Palace in Flames” chronicled a meeting between Mr. Escobar, Ms. Vallejo, and a top leader of M-19, a Colombian guerrilla organization. A scene in episode 104, Ms. Vallejo contended, is similar to “That Palace in Flames,” because it portrayed a meeting between Mr. Escobar and a character named Ivan who was an M-19 leader.

Based on those two scenes from episodes 103 and 104 of Narcos, Ms. Vallejo sued Narcos Productions LLC and others in the Southern District of Florida, alleging copyright infringement. See Vallejo v. Narcos Prods. LLC, 415 F. Supp. 3d 1144 (S.D. Fla. 2019).

In the lower court, the defendants argued that the only similarities between the works were unprotectable facts. After comparing the facts and the overall feel of the Narcos scenes, Judge Rodney Smith of the Southern District of Florida agreed. He granted summary judgment in favor of the defendants because their scenes did not copy any protectable expression from the memoir; the works were not substantially similar, so there was no infringement as a matter of law. See id. at 1152, 1153, 1154.

On appeal, the Eleventh Circuit reviewed the grant of summary judgment de novo. The defendants conceded in the lower court that Ms. Vallejo owned a valid copyright and admitted that they had access to and copied from the memoir. Thus the appeal centered on whether the copying was legally actionable. That meant the Eleventh Circuit panel had to decide whether there was substantial similarity between the Narcos scenes and the protectable elements of the memoir.

To begin its analysis, the panel divided the two memoir chapters into parts: unprotected facts and protected expression of those facts. Facts alone do not enjoy copyright protection. And Ms. Vallejo admitted that “the facts reported in her memoir are true.” See Vallejo, 2020 WL 6281501, at *6.

Ms. Vallejo had copyright protection only “in the way that she set her ‘characters, theme, plot, setting, and mood and pace.’” Id. at *7. But the Narcos scenes allegedly copied only unprotected facts. None of the alleged similarities constituted protectable expression from the memoir. See id. at *9–10.

The Eleventh Circuit panel affirmed Judge Smith’s grant of summary judgment in favor of the defendants because it found that the Narcos scenes were not substantially similar to protected elements of the memoir. Put differently, the Narcos scenes did not infringe the copyrighted memoir.

Ms. Vallejo unsuccessfully urged the court of appeals to apply a modified substantial similarity standard for comparing works in different media (e.g., a film and a book), based on a 1941 Ninth Circuit decision—Kustoff v. Chaplin, 120 F.2d 551 (9th Cir. 1941). See Vallejo, 2020 WL 6281501, at *9–10.

The Eleventh Circuit opined that the Kustoff test no longer applies and refused to change its substantial similarity test.