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November 21, 2019

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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