In The News

Tampa Bay Innovation Center is now accepting applications for CO.STARTERS Rebuild, a 10-week, live-facilitated virtual program that helps small businesses impacted by COVID-19 refocus, stabilize, and build toward long-term recovery.

“Small businesses are a major economic driver contributing nearly half of the overall growth of the economy. They have been hardest hit by the COVID-19 pandemic. By offering the Rebuild program we aim to help our local economy recover more quickly by providing the tools for small businesses to drive innovation, growth and jobs.” said Chris Paradies, Tampa Bay Innovation Center chairman and CO.STARTERS facilitator.


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Copyright Errors Might Be Fatal

Unicolors v. H&M, 2020 U.S. App. LEXIS U.S. App. LEXIS 17097 (9th Cir. May 29, 2020)

This ruling is a big change in the way that copyright lawsuits are to be handled in the quixotic Ninth Circuit.

The copyright owner used a way of grouping copyrighted items together into a single application. Unfortunately, it used the wrong one.

A judgment for $266,209.33 in damages and $514,565.47 in attorney’s fees and costs was reversed by the court of appeals, sending the matter back to the district court. According to Section 411(b)(1) of the Copyright Act a registration certificate that contains inaccurate information or errors can still serve as the basis for a lawsuit unless “…the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate…” and “…the inaccuracy of the information, if known, would have caused the Register of Copyrights to refuse registration.” 

The Copyright Act provides a way for district courts to seek advice from the Register of Copyrights. It used to be optional, but it is now mandatory in the Ninth Circuit if the registration certificate contains inaccurate information and that the inaccurate information was included on the copyright registration application with knowledge that it was inaccurate.

Authors and artists should be careful to correctly use applications that allow a group of copyrighted works to be registered in a single application. Rules have been relaxed and allow cost effective registration if you know what you are doing.

Consider taking iPscaling’s copyright creative workshop to learn the correct way to file for your copyright registrations. It’ll get you started right, and you won’t have to lose three quarters of a million dollars to learn this lesson.

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Patent & Trademark Office Deadlines

The United States Patent and Trademark Office has provided a cost-free way to extend some deadlines that could not be met due to the pandemic. Some responses may be extended to June 1, 2020 if the delay was due to COVID-19 related circumstances. If you need help, schedule an online video meeting with Chris Paradies, a U.S. Registered Patent Attorney in Tampa, Florida, using this link: https://iPscaling.as.me/paradies.

Certain deadlines from March 27th to May 31st may be eligible for extension to June 1, 2020.


The following responses in patent matters are included (without limitation):

  • reply to an Office notice issued during pre-examination processing1 by a small or micro entity;
  • reply to an Office notice or action issued during examination or patent publication processing;
  • issue fee;
  • notice of appeal under 35 U.S.C. § 134 and 37 C.F.R. § 41.31;
  • appeal brief under 37 C.F.R. § 41.37;
  • reply brief under 37 C.F.R. § 41.41;
  • appeal forwarding fee under 37 C.F.R. § 41.45;
  • request for an oral hearing before the Patent Trial and Appeal Board (PTAB or Board) under 37 C.F.R. § 41.47;
  • response to a substitute examiner answer under 37 C.F.R. § 41.50(a)(2);
  • amendment when reopening prosecution in response to, or request for rehearing of, a PTAB decision designated as including a new ground of rejection under 37 C.F.R. § 41.50(b);
  • maintenance fee, filed by a small or micro entity;
  • request for rehearing of a PT AB decision under 3 7 C.F .R. § 41.52;
  • request for rehearing of a PTAB decision under 37 C.F.R. §§ 41.125(c) or 41.127(d); or
  • petition to the Chief Judge under 37 C.F.R. § 41.3.

The patent office as provided additional instructions and may consider other extensions than those specifically listed. The patent office will waive the petition fee in 37 C.F.R. § 1.l 7(m) when the patent applicant or patent owner files the delayed response or fee with a petition under 37 C.F.R.
§ l.137(a) and the statement: “A practitioner, applicant, patent owner, petitioner, third-party requester, inventor, or other person associated with the filing or fee was personally affected by the COVID-19 outbreak, including, without limitation, through office closures, cash flow interruptions, inaccessibility of files or other materials, travel delays, personal or family illness, or similar circumstances, such that the outbreak materially interfered with timely filing or payment.” See 35 U.S.C. § 41(a)(7).

The inclusion of this statement is treated as a request for sua sponte waiver of the petition fee under 37 C.F.R. § 1.17(m). This petition to revive may be submitted via the USPTO patent electronic filing systems (EFS-Web or Patent Center) using document code PET.RELIEF or by mail directed to Mail Stop Petition, Commissioner for Patents, P.O. Box 1450, Alexandria, VA 22313-1450.

Notice that the list of reasons in the statement is not all inclusive. If the outbreak materially interfered with timely filing, for any reason, then an extension of time may be requested using a no fee petition.


The trademark office has provided instructions about the forms to use, types of matters eligible, and the language of the statement. The following responses for trademarks are included:

  • response to an Office action, including a notice of appeal from a final refusal, under 15 U.S.C. § 1062(b) and 37 C.F.R. §§ 2.62(a) and 2.141(a);
  • statement of use or request for extension of time to file a statement of use under 15 U.S.C. § 1051(d) and 37 C.F.R. §§ 2.88(a) and 2.89(a);
  • notice of opposition or request for extension of time to file a notice of opposition under 15 U.S.C. § 1063(a) and 37 C.F.R. §§ 2.l0l(c) and §2.102(a);
  • priority filing basis under 15 U.S.C. § 1126(d)(l) and 37 C.F.R. § 2.34(a)(4)(i);
  • priority filing basis under 15 U.S.C. § 1141g and 37 C.F.R. § 7.27(c);
  • transformation of an extension of protection to the United States into a U.S. application under 15 U.S.C. § 114lj(c) and 37 C.F.R. § 7.3 l(a);
  • affidavit of use or excusable nonuse under 15 U.S.C. § 1058(a) and 37 C.F.R. § 2.160(a);
  • renewal application under 15 U.S.C. § 1059(a) and 37 C.F.R. § 2.182; or
  • affidavit of use or excusable nonuse under 15 U.S.C. § l 141k(a) and 37 C.F.R. § 7.36(b).

For abandoned applications, the Trademark Electronic Application System (TEAS) “Petition to Revive Abandoned Application” form should be used. For canceled/expired registrations, trademark owners should use the TEAS “Petition to the Director” form.

In all trademark cases, the petition must include a statement: “The delay in filing or payment was due to a practitioner, applicant, registrant, or other person associated with the filing or fee was personally affected by the COVID-19 outbreak, including, without limitation, through office closures, cash flow interruptions, inaccessibility of files or other materials, travel delays, personal or family illness, or similar circumstances, such that the outbreak materially interfered with timely filing or payment.”

The inclusion of this statement is treated as a request for a waiver of the petition fee under 37 C.F.R. § 2.6(a)(l5).

The petition for trademarks must be filed not later than two months after the issue date of the notice of abandonment or cancellation. 37 C.F.R. §§2.66(a)(l), 2.146( d)(l). If the applicant or registrant did not receive a notice of abandonment or cancellation, the petition must be filed not later than six months after the date the trademark electronic records system indicates that the application is abandoned or the registration is canceled/expired. 37
C.F.R. §§ 2.66(a)(2), 2.146(d)(2).

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trademark, Uncategorized

Trademark Disputes

Can I use a word the same or similar to a famous mark in my advertising copy?

What about an apparently abandoned mark? Is that available?

Will I get sued if…?

Can I get a trademark for…? 

I see questions like these often in my practice, at parties and on social media.

Hi, I’m Chris Paradies, a registered patent attorney and Florida Bar certified intellectual property attorney, and I’m going to answer all of the confusion surrounding trademark registration and lawsuits.

I’m not going to get into “fair use”, much, which is a defense to trademark infringement. While I would like to include this, it would just make this training too long. And in most cases, you just don’t want to be relying on a fair use defense.

So, let’s look at trademarks.

There are some common misunderstandings that make it hard to talk about trademarks. But most of these will be addressed as we discuss this topic. Just agree to keep an open mind, and forget what you think you already know about trademark disputes.

First, always remember, the point of owning a trademark or service mark is to identify your company as the source of particular goods or services. If you start here, and remember this, it makes everything else easier. 


You’d like to have as distinctive a mark as possible. So, you’re not likely to be delving deep into the unanswerable questions. Instead, you’re looking for a distinctive mark that your customers will readily identify with your brand and ONLY your brand.

The point of distinctiveness is not to see how close you can come to someone else’s mark. You’re not looking for how close you can come to being likely to confuse consumers…

With this in mind, the very difficult likelihood of confusion scenarios become: “Is there any possibility of confusion?” That question is usually much easier to answer. 

What do I mean by “likelihood of confusion”? 

That’s the analysis used in court to determine if an owner of a mark can stop a third party from using or registering the same mark or a similar mark. The factors used in this analysis are sometimes referred to as Dupont factors, because lawyers like to refer to the name of a litigant from an appellate case that is cited by other lawyers in the courts.    

  1. Are you using the “word” as a mark, to identify your goods and services, or are you using the word descriptively?
  2. If you’re using the word as a mark, are you using it to identify you or your company as the source of any similar goods or services?
  3. Are you serving the same customers?
  4. Are you using the same channels of commerce?
  5. How many other companies are using the “word” or something similar as a mark and in what types of goods or services?
  6. Is the “word” used in combination with design elements in the logo, as part of the logo?
  7. Who used the “word” first as a trademark or service mark?

Once you answer all of these questions, then you should consult with a trademark or “intellectual property” attorney in your state or country.

If your company is a corporation or limited liability company, you won’t be able to sue without an attorney.

If the “word” is registered as part of a design as a logo by a third party, and you are using it in commerce as a mark to identify your company as the source of goods or services, after the filing date of the application for registration, then be thankful that you have not already been sued.

If you’re using it to identify the brand of goods or services that you are reselling, then you have to look at “fair use” to determine if your use of the third party’s mark is a permitted use.

And remember that there is little upside for you to bring a lawsuit against a third party to continue using any particular word, descriptively, if there are lots of other words that you can use to describe your goods or services.

With all that said, if you want to sue in the U.S., you have the right. I would advise against bringing a lawsuit against a trademark owner unless you have at least a few hundred thousand dollars you would like to blow. But I am sure there are attorneys out there that could use your money better than you.

So what are the “Dupont factors”? 

It all comes down to whether your trademarks and trade dress are distinctive or are likely to cause confusion among likely consumers of your product or service. The more distinctive your mark is from other marks, the less likely that any of the factors considered in the case referred to as Dupont will be relevant to your situation.

  1. Relatedness. How related are the goods that are being sold? The more related; the more likely that confusion ensues.
  2. Similarity. How similar are the marks? The more similar; the more likely confusion ensues. It could be any type of similarity, whether in appearance or in sound (as spoken) or in meaning or in commercial impression or in any other way.
  3. Channels. Are the channels of commerce that are likely to continue similar? A channel of commerce is how your product or service is discovered and distributed. Some examples are retail, direct sales, distributors…, if the channels are the same; the more likely that confusion ensues.
  4. Conditions. Under what conditions do consumers make a decision to purchase your product? The more likely the purchase is an impulse purchase; the more likely that confusion ensues.
  5. Fame. How famous is the prior mark? The more famous the mark; the more likely that confusion ensues.
  6. Number. How many other brands are using similar marks on related goods? The fewer brands using similar marks on similar goods; the more likely that confusion ensues.
  7. Actual. Is there actual confusion. The more actual confusion among actual relevant consumers; the more likely confusion ensues.
  8. Concurrent. Have the marks been used concurrently for an extended time without actual confusion? The shorter the period that similar marks have been used on similar goods without actual confusion; the more likely actual confusion.
  9. Variety. How many goods is the senior brand (i.e. the earlier brand use of the mark) being used on? The more goods; the more likely that confusion ensues.
  10. Consent. Has the senior brand consented to the particular use made by the junior mark? A consent agreement may be entered into by two parties that provides for concurrent use of similar marks. This may be relevant to a confusion analysis, especially if the agreement sets out limitations on the uses made of the mark by the parties. Alternatively, consent may be given without any agreement, if the senior party new or should have known of the junior party’s use. Legally, this implied consent is called laches or estoppel, depending on the facts. The less deliberate and obvious the attempts to avoid confusion; the more likely confusion ensues, regardless of consent.  
  11. Exclude. The right to exclude others from using its mark is considered. A federal registration gives a user the right to exclude others, but a “common law” use of mark, without registration, doesn’t give rise to the right to exclude, necessarily. The stronger the right to exclude; the more likely confusion ensues. 
  12. Extent. What is the extent of any possible confusion? The greater the extent of possible confusion; the more likely confusion ensues.

These factors are not exclusive. Anything else that is relevant to the use and giving rise to confusion should be considered

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trade secret, Uncategorized

Trade Secret Safety

It’s no secret that trade secret theft is rampant, and it seems that much of it is being supported by Chinese sources.

Recently, Hongjin Tan, a Chinese national and former scientist at Phillips 66, was sentenced to 2-years imprisonment following a guilty plea for copying files that contained trade secrets relating to battery technology. He downloaded hundreds of files to a flash drive before tendering his resignation. Some of those files were later found on Tan’s external drive at his home.

The technology was work $1 billion. Wouldn’t it have been a good idea to restrict access to those files? Do you have any restrictions on who can download restricted files in your business?

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Scaling your company’s iP or iPscaling is how innovative or creative businesses build value.

The “Concertina” principle shows business owners the way to build business value fast and efficiently.

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CARES Act Small Business Loans

The CARES Act establishes a new $349 billion Paycheck Protection Program. The Program will provide much-needed relief to millions of small businesses so they can sustain their businesses and keep their workers employed.
“This unprecedented public-private partnership is going to assist small businesses with accessing capital quickly. Our goal is to position lenders as the single point-of-contact for small businesses – the application, loan processing, and disbursement of funds will all be administered at the community level,” said Administrator Carranza. “Speed is the operative word; applications for the emergency capital can begin as early as this week, with lenders using their own systems and processes to make these loans. We remain committed to supporting our nation’s more than 30 million small businesses and their employees, so that they can continue to be the fuel for our nation’s economic engine.”
“This legislation provides small business job retention loans to provide eight weeks of payroll and certain overhead to keep workers employed,” said Secretary Mnuchin. “Treasury and the Small Business Administration expect to have this program up and running by April 3rd so that businesses can go to a participating SBA 7(a) lender, bank, or credit union, apply for a loan, and be approved on the same day. The loans will be forgiven as long as the funds are used to keep employees on the payroll and for certain other expenses.”
The new loan program will help small businesses with their payroll and other business operating expenses. It will provide critical capital to businesses without collateral requirements, personal guarantees, or SBA fees – all with a 100% guarantee from SBA. All loan payments will be deferred for six months. Most importantly, the SBA will forgive the portion of the loan proceeds that are used to cover the first eight weeks of payroll costs, rent, utilities, and mortgage interest.

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CoVID 19 Assistance

ALERT: Small Businesses Need to Take Action
Coronavirus Aid, Relief and Economic Security (CARES) Act
This Act was signed into law yesterday and takes effect in 15 days. It has requirement and help for small businesses. What kind of help? Would $10,000 help? What if it was not a loan but a grant for making payroll (if you keep your employees employeed through June 30 and pay interest through June 30)?

There is $350 billion for 100% federally-guaranteed small business loans and loan forgiveness packed into the Act, and It all goes into to effect two weeks from today. Right now, www.SBA.gov doesn’t seem to have any details. But here’s a run down…

Paycheck Protection Program (PPP)
Small businesses, nonprofits and veteran’s organizations with under 500 employees are eligible. Self-employed individuals and independent contractors are also eligible.

The maximum loan amount is $10 million through December 31, 2020, with the size of the loan tied to the average monthly payroll for 2.5 months. Loans can be used to cover payroll, benefits, mortgage, rent and utilities. Retroactive start date — February 15, 2020 — incentivizes companies to rehire staff that have been laid off.

Businesses with more than one physical location that employ no more than 500 employees per physical location in certain specified industries are eligible. Franchisees are eligible (food service at least).

Businesses are eligible for loan forgiveness equal to the amount spent during an 8-week period after the origination date of the loan on payroll costs, most interest payments on mortgages, rent or utility bills. Amounts forgiven may not exceed the principal amount of the loan and eligible payroll costs do not include compensation above $100,000 in wages. Forgiveness on a covered loan is equal to the sum of payroll costs incurred during the covered 8-week period compared to the previous year or time period.

Economic Injury Disaster Loans

(Emergency declaration must be made for a designated area before loans become available. These are already in place and can be found at SBA.gov.)

Tax Credits and Incentives

Refundable credits and adjustments are available for employers affected by COVID-19. Deferral allows companies to defer payment on their 2020 Social Security payroll taxes to future years with no penalty. Half will be due at the end of 2021, and the remaining half in 2022.

Employee Retention Tax Credit
Employers who have been hit with at least a 50% loss in gross receipts compared to the same quarter last year are eligible. Allows companies that maintain their payroll to receive a 50% credit on wages of up to $10,000 per employee. Companies with 100 or fewer employees could obtain a 50% credit on all wages paid. This is a refundable tax credit.

Tax Credit for Emergency Paid Sick & Family Leave
Employers reimbursed through a refundable tax credit that counts against employers’ payroll tax. Submit emergency paid sick and family leave expenses as part of their estimated quarterly tax payments. If employer’s costs more than offset their tax liability, they will get a refund from the IRS.

Modifications for Net Operating Losses
This relaxes limitations on use of losses for tax purposes. Allows for net operating losses arising in a tax year beginning in 2018, 2019 or 2020 to be carried back five years.

New Mandatory Sick Leave and Emergency Family Leave Requirements

Through December 31, 2020, employers have to pay for sick leave and family leave, although employers with less than 50 employees might be exempted.

New Emergency Paid Sick Leave Requirements

Employers with fewer than 500 employees must provide 2 weeks of emergency paid sick leave for employees. Full-time employees must be compensated for 80 hours. Part-time employees must be compensated for their typical number of hours worked. What’s covered? Complying with quarantine related to CoVID 19 (100% of pay). Diagnosis or preventive care for CoVID 19 (100% of pay). Care for sick family member (two-thirds pay)
Care for child whose school is closed (two-thirds pay).

Who Pays for the Emergency Leave?
Employers initially front the cost of emergency leave, but will be fully reimbursed by the federal government within three months. Reimbursement covers both the wages paid and the employer’s contribution to employee health insurance premiums during the period of leave. Employers are reimbursed by a refundable tax credit that counts against employers’ payroll tax. Employers submit emergency paid sick leave expenses as part of their estimated quarterly tax payments. If employer’s costs more than offset their tax liability, the employer gets a refund from the IRS. New Emergency Paid Family Leave Requirements*
Employers with fewer than 500 employees must provide 12 weeks of (unpaid in part) job-protected leave for employees who have been on the job for at least 30 days.

The Department of Labor may issue exemptions for employers with less than 50 employees. This is TBD.


The first 10 work days (2 weeks) are unpaid. Then, 10 weeks of paid leave (up to $10.000?). Eligible employees may elect or may be required to overlap the initial two weeks of unpaid leave with two weeks of other paid leave they have available. Employers will pay no less than two-thirds of an employee’s usual pay. Family leave assistance is capped at $10,000 per employee.

What’s covered?
Care for child in the event of a school closure or their childcare provider is unavailable due to COVID-19.

Who Pays for the Emergency Paid Family Leave?
Employers initially front the cost of emergency paid sick leave but will be fully reimbursed by the federal government within three months.
Reimbursement covers both wages paid and employer’s contribution to employee health insurance premiums during the period of leave.
Employers reimbursed through a refundable tax credit that counts against employers’ payroll tax, which all employers pay regardless of non-profit/for-profit status. Employers submit emergency paid family leave expenses as part of their estimated quarterly tax payments. If employer’s costs are more than offset by their tax liability, the employer gets a refund from the IRS.

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Google v Oracle

BREAKING: Supreme Court of the United States agrees to take up precedent setting case on copyrightability of software.

I don’t expect a ground breaking change in what the courts consider copyrightable, but this case does raise interesting legal issues.

The issues arise out of a brouhaha between Oracle and Google over Google’s rewrite of a JAVA-like operating system for Android devices that adopted the same API structure and calls as used in the JAVA programming language.

The Court of Appeals for the Federal Circuit, the “IP appeals court”, overturned lower court decisions that would have dismissed the case for no copyright infringement or found “fair use” by Google of the API structure and names.

It is black letter law that short names cannot be copyrighted.

Its also black letter law that facts cannot be copyrighted.

In fact, except for software, copyright only protects “original creative expression” and the content is not protected.

How a person expresses an idea is protected by copyright not the idea, itself. But how a person expresses themselves in source code is not really the issue, unless lines of code are actually copied.

17 U.S. Code §?102 (b) of the Copyright Act states: “In no case does copyright protection for an original work of authorship 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.” Software is just another type of “original work of authorship”. So, copyright doesn’t extend to the process or method.

For the most part, Google rewrote the source code for its operating system, expressing it in a different way. So, there doesn’t seem to be any significant actual copying by Google of any “original work of authorship.” Google chose to keep the functional API structure and call names substantially the same as Oracle’s JAVA API, but these calls to the code are a structurally functional process used to access Google’s operating system. It did this to make it easier for JAVA programmers to program for its Android operating system.

This is where it gets interesting.

Copyright’s protection of creative authorship is not an ideal protection for software, which gains its value from the functional procedures, processes, systems, methods of operation, and concepts — not from the expression of these. The real creativity in software is not how the source code is expressed but how it functions, the logic.

There’s nothing inherently creative about the expression of an API, which is utilitarian in nature. Nobody reads an API for enjoyment or to learn something, other than how to program a device to do something with the library of calls provided by the operating system.

Now, here’s the rub. It’s patent law that is intended to provide protection for a new, nonobvious and useful “…procedure, process, system, method of operation…” — not copyright. But the courts have been invalidating software patents for all types of “abstract ideas” and “algorithmic methods”. So, large swaths of software applications are no longer considered patentable subject matter.

If the functionality and utilitarian aspects of software are held to be unprotected by both copyright and patent law, this leaves trade secret law as the last vestige of protection for software. However, trade secrets only protect against misappropriation, not reverse engineering or independent redevelopment.

Many programmers embrace open source and might consider it to be just fine that companies can’t protect software using intellectual property rights. They see the benefits of reusing code and technological efficiency as a benefit to society and don’t see any significant benefit to keeping programs proprietary.

In fact, the Electronic Frontier Foundation (EFF), which declares itself the “leading nonprofit organization defending civil liberties in the digital world”, is celebrating the decision by the supreme court to reconsider the decision made by the Court of Appeals for the Federal Circuit.” The Supreme Court now has an opportunity to reverse the damage done by the Federal Circuit,” declare authors Michael Barclay and Katharine Trendacosta in an article posted to the EFF website.

They point out that the U.S. Solicitor General in the Obama administration opposed review by the supreme court and disparage the reasoning used in its briefs opposing review.

However, relying solely on trade secret law to keep software proprietary, ironically, could make it much harder to disseminate technology benefits. Programmers could be subject to egregiously restrictive covenants in employment and consulting agreements.

Let’s wait and see how the supremes deal with the issue. Proprietary software serves a purpose, allowing companies to invest and recoup some of their investment in large software development projects.

The term of 95 years under the Copyright Act is not at all reasonable for software. Even the 20 years from filing provided for patents seems long. Maybe it’s time to develop a new type of IP, with a shorter term, which provides protection for programmers without unduly burdensome repercussion on innovation in the technological arts.

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Facts Not Copyrighted

A recent Florida case is a good example for teaching what copyright protects and doesn’t ptotect. Netflix was sued by the author of a memoire in Vallejo v. Narcos Productions LLC.

The court dismissed the case, because Netflix did not infringe Vallejo’s copyrighted work. While there was copying of some facts from the work, these facts do not belong to Vallejo.

According to the decision, in one alleged instance of copying “…the only similarities between these two scenes are the blindfold, caressing with a gun, and Plaintiff/Velez is aroused.”

How these facts are portrayed in the fictionalized version presented in the Narcos series is substantially different than the description in the memoir.

“These facts are not protectable. The idea of a sex scene involving a gun is not protectable…. There is no dialogue that has been copied, the settings are different, the feel of the scenes are different, and how the scenes play out are different.”

Copyright cannot be used to prevent others from disclosing facts, even if the only place that those facts are found is in one copyrighted work. Once the facts are known, anyone may retell the facts, so long as the reteller does so in their own way and own words, without copying the way that the original author expressed those facts in the original work.

The fictionalized retelling of a story that uses a few original facts from a copyrighted work but tells a different story in a different way is not copyright infringement.

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