Narcos Defeats Yet Another Silly Copyright Lawsuit

from the just-the-facts dept

While Netflix's Narcos has certainly been a hit show for the streaming platform, it's still a bit surprising that there has been so much intellectual property strife surrounding the show. To date, the most notable IP dispute has been Pablo Escobar's brother's attempt to sue Netflix for one billion dollars. As Netflix was having Narcos actors pretend to threaten to shoot the public for pirating the show, Roberto Escobar was busy making no headway with his lawsuit, eventually dropping it.

But another lawsuit had been filed against Narcos as well, by a famous Colombian journalist who had a years-long affair with El Jefe. Virginia Vallejo wrote about her time with Escobar and the affair she had with him in a memoir, scenes from which were depicted in the Netflix series. She went on to claim that such depictions constituted copyright infringement. Unfortunately for her, a Miami judge ruled for Narcos producers on summary judgement, finding that the Netflix show had depicted only facts that were similar to Vallejo's accounts, while the rest of the depictions in two scenes the journalist calls out were not substantially similar to her retelling in her book.

The ruling itself is a rather, ahem, steamy read as far as these things go. The reason for that is that one of the scenes in question is a bedroom scene involving a revolver being used in new and creative ways.

Defendants argue that the only similarities 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.

Plaintiff contends that there are additional similarities, including the elegant bedroom, thatboth 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. However, 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.

The second scene in question is ruled on in the same way. Essentially what's happening here is that Vallejo claims that Netflix's depiction is so similar to her account in her book that it's copyright infringement. Netflix does not argue that copying didn't occur, but claims all examples of copying were of factual information, buttressed by Vallejo's claims that the accounts in her book are all factually true. The rest of the makeup of the scenes, the staging, scenery, exact dialogue, and feel of the scene all contain substantial differences with Vallejo's book.

It's hard to see how the world could operate had the court ruled any differently. Is the expectation that an artistic work telling the story of an historical figure can't retell the factual occurrences surrounding that figure if some third party already put those facts down in a book somewhere? Were that the case, depictions of historical figures could almost certainly not exist.

Filed Under: copyright, facts, idea expression dichotomy, narcos, pablo escobar, streaming, virginia vallejo

Pablo Escobar's Brother Gives Up His Quest For A Billion Dollar Extortion Of Netflix Over 'Narcos'

from the unsurprising-news dept

You will likely know that we've been following the absurd threats that Roberto Escobar, brother to and former accountant for noted drug kingpin Pablo Escobar, launched at Netflix and the makers of its hit show Narcos. The threats kicked off as something of a publicity rights challenge, with Roberto Escobar demanding one billion dollars over a show in which he does not appear and is not named. Escobar has appeared to believe that his knowledge of the inner workings of the Escobar cartel somehow granted him authority over the show, while pretty much everyone else has agreed that the First Amendment would ultimately torpedo any lawsuit that might actually get filed.

But then things got even stranger. Escobar's lawyers began making noises that indicated the show was about to capitulate to the threats and demands. Meanwhile, the legal team on the other side were at the exact same time pointing out just how absurd and ficticious some of Escobar's claims were, such as that he had been using the term "Narcos" in conjunction with operating a website and providing computer gaming services on a computer network since 1986. For those of you who are too young to remember a time without a widespread internet, there basically was no such thing as a publicly facing website in 1986. Meanwhile, a location scout for the show was murdered in Mexico while scouting for the series' fourth season, with Escobar offering cryptic and coy commentary on the matter that bordered on suggesting he was somehow involved.

All of that had just been happening in the fall, which might make it slightly less surprising that this whole thing will now go away.

The Escobar fam doesn't usually back down from a fight, but it waved the white flag in a showdown with a TV powerhouse ... TMZ has learned. Escobar Inc. -- the company run by Pablo's bro, Roberto -- folded in the battle to cash in on the terms "Narcos" and "Cartel Wars." Both were made famous recently by the popular Netflix show, and the related video game.

According to new legal docs, the company filed an abandonment of its trademark application in November. We broke the story ... lawyers for "Narcos" called BS on Pablo for filing paperwork claiming ownership of "Narcos" in connection with a website.

As TMZ goes on to note, there is no official word if any kind of settlement was reached as a part of the trademark abandonment, but one has to assume that even if there were a settlement that the result would be considerably less than the billion dollars Escobar once dreamed he would receive. The laughably flimsy claims in the threat letters along with the firm protection of the First Amendment in the American court system ought to have precluded Netflix and the show's makers from having any fear over any of this. Indeed, given the sure status of the laws protecting them, I could argue that Escobar's saber-rattling only served as free publicity and advertising for the show.

Regardless, the one-time accountant for his brother's drug mega-operation has not managed to beat down Narcos.

Filed Under: narcos, pablo escobar, publicity rights, roberto escobar
Companies: netflix

Dispute Between Roberto Escobar And Netflix Over 'Narcos' Gets Weird: Licensing Talks And A Dead Location Scout

from the even-stranger-things dept

Last year we discussed a dispute between Roberto Escobar, brother of the infamous drug kingpin Pablo Escobar and the Medellin cartel's accountant, and Netflix over the latter's hit show Narcos. It was a strange dispute for any number of reasons, ranging from Roberto Escobar's demand for one billion dollars and the rights to alter content in future episodes to the fact that Escobar's demands didn't lay any actual claim to any intellectual property in dispute, all the way up to the fact that Narcos doesn't actually portray Roberto Escobar at all. Much like the silly dispute between Activision and Manuel Noriega over publicity rights, it was pretty much assumed that this nonsense would be done away with more quickly than a federal informant working on the inside of the cartel.

Sadly, however, this still appears to be a thing, and it's getting quite strange. For starters, Escobar's legal team claims that a capitulation of sorts by the show might be in the works. It all starts as you'd expect, with the legal team for Narcos detailing via a letter how silly Escobar's claims are, as well as how plainly false the applications Escobar subsequently made for trademarks on terms and titles from the show were.

Narcos Productions, LLC (NPL) — the company behind the series and its popular video game spinoff Narcos: Cartel Wars — contend that without NPL's "knowledge or consent, on Aug. 20, 2016, Escobar filed use-based applications to register the marks NARCOS and CARTEL WARS with the [U.S. Patent and Trademark Office] covering a range of goods and services." Those services include everything from "downloadable ring tones" and "sunglasses, decorative magnets" to "temporary tattoos, bookmarks and sheet music," according to the trademark application documents included with the letter. The letter calls the claims "fraudulent."

"For example," writes NPL attorney Jill M. Pietrini, "Escobar claims that it has used NARCOS in connection with things like 'operating a website' and 'game services provided online from a computer network' since Jan. 31, 1986. However, the internet had not been developed for widespread consumer use in 1986, nor was the capability to provide audiovisual works nor game services available at that time."

So basically the lawyers for the show are demonstrating how flimsy Escobar's attempts to setup a legal way to extort the show are. Trademark law is quite clear on the rights it affords to those who are the first to use a trademark in commerce and ought to act as a shield to these attempts. Despite that, emails obtained by THR from Escobar's legal team to Escobar himself seem to indicate that Narcos is considering just paying Escobar to go away anyway.

In a subsequent email correspondence obtained by THR and dated Sept. 1, an attorney for Escobar Inc. at Century City-based Browne George Ross LLP informs his client that he and Pietrini had a productive conversation about the claim.

"I floated the idea of paying you for an assignment or license or release related to your pre-exisiting rights in the trademarks in certain categories," Wesley writes. "She seemed to see the logic of exploring those discussions. She is going to speak with her client and get back to me."

While there is no clear commitment to a licensing deal there, the entertainment industry is notorious for paying people like this to go away, so it's not entirely out of the question. Given the clear legal framework here, however, as well as the personalities involved on the other side, it strikes me as fairly ludicrous that the show's producers would want any part of paying a former member of the cartel for no clear legal reason. Escobar's lawyers are making a lot of noise about how if Escobar chooses not to settle for whatever Narcos might be willing to pay him, then they "own the trademarks", which certainly is not remotely true here in the United States.

Adding to how strange all of this is would be the fact that a location scout for the show, Carlos Munoz Portal, was murdered in Mexico in recent weeks while scouting locations for Narcos' fourth season. While the facts surrounding Portal's death remain unknown at the time of this writing, Escobar has been rather cryptic on the topic.

Speaking Monday to The Hollywood Reporter, Escobar's 71-year-old surviving brother, Roberto De Jesus Escobar Gaviria, suggested the show's producers are not cut out for filming in such cartel-infested locales as Mexico and Colombia, adding that they would benefit from the hiring of "hitmen ... as security."

As for whether or not anyone at Escobar Inc., including Gaviria, currently has any knowledge regarding what happened to slain location scout Portal, Gustafsson would only offer, "No comment on that. But Escobar Inc. cooperates with all law enforcement."

It's as likely as not that Escobar is merely playing coy on this topic to add some gravitas to his threats and demands to Narcos and Netflix, but the comments are chill-inducing considering the source. Regardless, the merits of the trademark claims at hand remain fairly clear. Talks of Narcos capitulating or not, it's difficult to imagine a $1 Billion payday for Escobar coming anytime soon.

Filed Under: narcos, publicity rights, roberto escobar
Companies: netflix

Netflix Has Narcos Actors Threaten To Shoot The Families Of French People For Pirating The Show

from the bullets-for-you dept

First, let's all just take a moment to drink in that headline above. 2017, people: it's a weird time to be alive. In any case, you likely have heard of Netflix's hit original show, Narcos. The show follows the exploits of Pablo Escobar's drug organization and was once the subject of Escobar's brother demanding a billion dollars from Netflix over the portrayal. Netflix, of course, was the disruptive new streaming service for movies and television that has since decided to go the route of copyright protectionist now that it is producing its own original content. It's a strange look for a company that exploded on a model of convenience over piracy, raking in tons of legit dollars by simply being an option better than or comparable to pirating films and television. Rather than continuing to compete in that arena, the company has begun to go the way of Big Content, firing off all kinds of DMCA notices.

And now threatening to shoot people and their families for pirating Netflix content? Well, not really, of course. I'm sure the folks at Netflix thought it would be funny to have actors from Narcos do so in character in France. But watch the video Netflix put out for yourself.

If you cannot see the video, the TorrentFreak link above has a nice summary of it.

“Hey you, yes you, do you think you’re smart? Do you think we didn’t see you Googling ‘Narcos season 3 download’? Don’t be a fool. Narcos is a business,” Pepe begins.

“If you want your entertainment. If you want your show. You’re gonna pay the Cali Cartel, ‘hijo de puta’,” Pacho adds, using the strong language one expects from a cartel leader.

“Do you think we’re like Hadopi? Do you think we’re going to send you a nice and polite letter first? Please, sir / madam, could you please not illegally download Narcos? We don’t do courtesy letters.”

“There is no please, no por favor, no s’il vous plait,” Pepe adds.

“There’s bullets for you, your family, and all the people you send to watch Narcos on all those shitty websites full of questionable pop-ups,” Gilberto says.

“You know where to find us. Don’t mess around ‘hijo de puta’,” his brother adds.

It's just uncomfortable. Nobody is mistaking Netflix actors for actual hitmen, but it's worth putting this sort of thing in the context of the past decade, in which people really have had their lives ruined in retribution for copyright infringement. The threat letters from copyright trolls really do go out across Europe, looking for all the world like the legal arm of some extortion ring or mob organization. Threats to out people for their pornography of choice really have happened. Within that landscape, to joke around about shooting those who pirate a television show misses the mark on humor entirely, and coming from a company like Netflix it's downright creepy.

Filed Under: advertisement, anti-piracy, france, narcos, threats
Companies: netflix

Pablo Escobar's Brother Demands One Billion Dollars From Netflix Over Narcos

from the seems-reasonable dept

What is it with South American historical figures suddenly thinking they can control everything to do with their family names? You'll hopefully recall the brief existence of a case of publicity rights violation brought against Activision by Manuel Noriega over the depiction of him in the gamemaker's Call of Duty series. That case was quickly tossed out by the court because the First Amendment has just an tiny bit more weight when it comes to artistic expression than does any publicity rights for public historical figures from other countries that might, maybe, kinda-sorta exist, possibly. We might have struggled at the time to find a complainant less likely than Noriega to win this sort of long-shot in the American court system, but we need struggle no longer.

Roberto Escobar, brother and former accountant to drug kingpin Pablo Escobar, has sent a letter to Netflix demanding a billion dollars (not a joke) and the right to review all future episodes of the streaming company's hit show Narcos, to make sure that he and his family are portrayed accurately. The letter, first published by TMZ (which explains the massive TMZ watermark on it) is quite a read.

“In the first season of Narcos, there were mistakes, lies and discrepancies from the real story,” the letter says. “To this date, I am one of the few survivors of the Medellin cartel, and I was Pablo’s closest ally, managing his accounting and he is my brother for life. I think nobody else in the world is alive to determine the validity of the materials, but me.”

Escobar adds that he is seeking $1 billion in compensation, and “if they decline my offer we have attorneys ready to proceed with necessary actions” over misappropriation of the Escobar name. “I don’t think there will be any more Narcos if they do not talk to me,” he says. “They are playing me without paying. I am not a monkey in a circus, I don’t work for pennies.”

Okay, so let's unpack this a little. For starters, Roberto Escobar isn't even in the television series. Like, at all. He's not even mentioned. Using a handy thing called creative license, the show portrays Pablo's accountant as someone completely different, not related to the family. Which means this is all about Roberto Escobar claiming exclusive rights over the portrayal of other Escobars, which is an interesting legal concept in that it has almost no grounding in any kind of reality.

First, Escobar makes no claim to any actual official intellectual property rights over his name. None. Instead, he touts his knowledge of the inner workings of the drug operation as the reason why he exerts this control. This novel legal theory is wholly unlikely to find any purchase within the American legal system. And, even if it were, as was the case with Noriega's lawsuit, the First Amendment trumps any kind of publicity rights that might exist, in particular when we're talking about historical figures such as pretty much every named real person in the Narcos series. Certainly Pablo Escobar qualifies, as would most of his notorious gang.

Instead, this is likely an attempt by Roberto to make enough noise to have Netflix hire him on to have some involvement in the show. He's apparently sent them letters in the past requesting this, prior to his request for the paltry sum typically reserved for Dr. Evil. Though I admit it would be comical to see him actually try this tactic in court.

Filed Under: narcos, pablo escobar, publicity rights, roberto escobar
Companies: netflix