Hey kids: Let’s play a game called “Copyright Litigation Hypothetical that’s Not Entirely Hypothetical” – a fun little exercise that might someday prevent you from filing a doomed lawsuit and having to pay attorney’s fees run up by a lawyer for some massive company like Netflix.

Let’s suppose in the course of your life, you find yourself having a romantic relationship with someone who would go on to be internationally infamous – like, say, the head of a major Colombian drug cartel.

Let’s further assume that after that the nefarious drug lord in question has met his demise, perhaps in a fusillade of bullets, you decided to write a book about your relationship with the now deceased kingpin.

Fast forward about a decade and imagine that a major video streaming platform has released a new series about your former lover, the dead cartel leader – and within that series, there are two scenes which appear to be ripped right out of your memoir.

What do you do? Do you file a copyright lawsuit, seeing dollar signs in your eyes, or do you curse the streaming platform to the heavens, but do little else, because you figure the production company behind the series might just have pricey lawyers coming out their nose with which to make a legal battle a very expensive and lengthy proposition?

Before you decide on an answer, let’s consider what really did happen when Virginia Vallejo, Colombian journalist and author of Loving Amando a Pablo, Odiando a Escobar (“Loving Pablo, Hating Escobar”)  sued Narcos Productions, LLC.

Starting with the uncontested facts, Vallejo had an affair with Pablo Escobar that ran from the middle of 1983 to September 1987. She published the book in 2007 and owns the copyright to two Spanish-language versions of it. Netflix released the first season of Narcos in 2015 and Vallejo filed her complaint alleging copyright violation in August 2018.

At issue in the case were two scenes from Narcos that Vallejo alleged the show had copied from her memoir – referred to in the case’s legal documents as the “Revolver Scene” and the “Meeting Scene.” While the production company conceded it had access to Vallejo’s memoir, they argued that there is no copyright protection for historical fact. Both parties moved for summary judgment in the case.

The two scenes at issue in the case are described at length in U.S. District Court Judge Rodney Smith’s order granting summary judgment, which was issued late last year. The reason the scenes are described in such detail in the order is related to the legal standard being applied, which requires the plaintiff to show “substantial similarity” between the version in their work and the version in the allegedly infringing work.

“As noted earlier, for purposes of the motions for summary judgment, Defendants concede to factual copying,” Smith explained in his order. “Where a defendant admits to factual copying, as Defendants do, a court focuses on whether such copying is legally actionable; that is, whether there is ‘substantial similarity’ between the allegedly offending [works] and the protectable, original elements of the book’… Accordingly, the issue for the Court is whether there is ‘substantial similarity’ between the Narcos scenes at issue and the protectable, original elements of Plaintiff’s Memoir.”

In the 11th Circuit, where Vallejo filed her case, the substantial similarity standard dictates that Vallejo had to establish that “an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.”

In evaluating whether the Revolver Scene met this criterion, Smith noted that the defendants asserted the only similarities between the scene in Vallejo’s book and the scene in the series 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,” Smith wrote.

Vallejo argued there were 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.”

The judge wasn’t convinced, however, writing that “comparing 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.”

“Comparing the two scenes leads to the conclusion that they are not substantially similar,” Smith wrote. “The atmosphere, or overall feel, of each of the scenes is very different… 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 applied a similar analysis to the Meeting Scene and came to the same conclusion – “there is no substantial similarity between the Meeting Scene in Narcos and Plaintiff’s Memoir.” In other words, neither scene violated Vallejo’s copyrights, because to the extent the series copied from her book, it copied elements which can’t be copyrighted.

You may be wondering why I’m writing in September 2020 about a copyright case in which summary judgment was granted to the defendants in November of the previous year. As is the case with many lawsuits, this one didn’t truly “end” with the grant of summary judgment. In this instance, developments in the case after grant of summary judgment flowed in part from Narcos Productions asking the court to make Vallejo pay their attorneys’ fees and other costs.

Last month, the court received its requested report and recommendation from another judge (two reports actually, the other related to the grant of tax costs), U.S. Magistrate Judge Lauren Louis, who granted in part what the defendants had requested.

Among other things, Louis’s report provides an interesting look at how courts evaluate motions for attorney’s fees and the accounting offered by attorneys in such filings. Ultimately though, the headline for Vallejo is in the bottom line at which Judge Louis arrived – namely, that she now owes Narcos Productions $242,263.00 in attorneys’ fees.

On Monday, Judge Smith issued an order affirming and adopting the recommendations. The case is still not over though; Vallejo has filed an appeal and hopes a higher court overturning Smith’s ruling will erase the prospect of having to pay Narcos Productions’ lawyers, as well.

Checklist photo by Pixabay from Pexels