[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 19

- 14894 Non

- Argument Calendar

________________________ D.C. Docket No. 1:18

- cv - 23462

- RS

VIRGINIA VALLEJO, Plaintiff

- Appellant,

versus NARCOS PRODUCTIONS LLC, a Delaware limited liability company, NETFLIX, INC., a Delaware corporation, GAUMONT TELEVISION USA LLC, a Delaware limited liability company f.k.a. Gaumont International Television LLC, DYNAMO PRODUCCIONES S.A., Defendants

- Appellees.

________________________ Appe al from the United States District Court for the Southern District of Florida

________________________ ( October 27, 2020 ) USCA11 Case: 19-14894 Date Filed: 10/27/2020 Page: 1 of 232 Before JORDAN , GRANT, and LUCK , Circuit Judges.
PER CURIAM: In this copyright infringement case, Virginia Vallejo appeals the district court’s grant of summary judgment in favor of Narcos Production LLC , Netflix, Inc. , and Gaumont Television USA LLC. She contends that the district court erred when it concluded that two scenes from the television series Narcos , in episodes 10 3 and
10 4 , were not substantially similar to two chap t ers in her m emoir , Amando a Pablo, Odiando a Escobar (2013). Following review of the record and parties’ briefs, we affirm.
I From mid

- 1983 until September of 1987, Ms. Vallejo , a well

- known Colombian journali st and anchorwoman, had a romantic affair with Pablo Escobar ,

a notorious Colombian drug trafficker

. Based on this affair , s he authored the m emoir Amando a Pablo, Odiando a Escobar (2013 ) , which translates to Loving Pablo, Hating Escobar

. She owns the copyright in two Spanish

- language versions of the book, Copyright Registration TX0007105765 and Copyright Registration
TX0 0 07833787. The m emoir recounts Ms. Vallejo’s romantic relationship with Mr. Escobar, as well as the rise of the Colombian drug cartels. According to Ms. Vallejo, the facts in the m emoir are “all true.”

USCA11 Case: 19-14894 Date Filed: 10/27/2020 Page: 2 of 233 A
T wo chapters in Ms. Vallejo’s memoir are at issue on this appeal

— “ The Caress of a Revolver” and “That Palace in Flames.” “ The Caress of a Revolver” de scribes a romantic encounter between Ms. Vallejo and Mr. Escobar, in which Mr. Escobar uses a gun in foreplay with Ms. Vallejo. “That Palace in Flames” chronicles a meeting between Mr. Escobar, Ms. Vallejo, and Ivan Marino Ospina, one of the heads o f M

- 19 , a Colombian guerrilla organization.
1
In “ The Caress of a Revolver,” Mr. Escobar takes Ms. Vallejo to his penthouse by telling her that there i s a surprise waiting for her. See D.E. 76

- 1 at 13. At the penthouse, Ms. Vallejo sits in a low

- backed chair and Mr. Escobar speaks to her in a “threatening tone and [with] an ice

- cold expression in his eyes.” Id

. He then says to her : So now you see who has the higher IQ here. Not to mention who’s got the balls, right? An d if you complain or make one false move while I’m preparing the surprise, I’m going to rip that dress in two, film what comes next, and sell the video to the media. Id

. Mr. Escobar then ties a black blindfold over Ms. Vallejo’s eyes, while humming “Fe elin’ Groovy” by Simon and Garfunkel , and wonders where he placed his handcuffs. See i d

. Ms. Vallejo refuses to be handcuffed and gagged , and Mr.

USCA11 Case: 19-14894 Date Filed: 10/27/2020 Page: 3 of 234 Escobar relents by telling her that he would “ never underestimate a panther with delusions of genius.” Id

. She answers : “. . . I would never underestimate a criminal with the delusions of a schizophrenic.” Id . She then hears Mr. Escobar open a safe and load six bullets into a revolver. See i d

. He stands behind her, “speaking into [her] ear in a whispery voice while his left hand holds [her] by the hair and the other slides the barrel of the gun in circles on [her] neck, around and around.” Id

. Soon thereafter, Mr. Esc o bar asks Ms. Vallejo i f it is terrifying to have a gun pointed at her by a murderer. See id

. at 14. She answers by saying : Quite the opposite: it’s absolutely exquisite! Ooohhh . . . what could be more divine . . . . more sublime, I say, throwing my head back and sighing in pleasure while he unbuttons my shirt dress and the gun starts to descend along my throat toward my heart. “And, in any case, you’re only a sadist . . . not a murderer. ” Id

. He prompts her to describe why she likes it so much and starts to kiss her neck and shoulders. See i d

. Ms. Vallejo describes the gun and the sensations as “the revolver descends slowly in a straight line down my breast and my diaphragm, across my waist a nd toward my abdomen.” Id . She then abruptly tells him , “I swear to you Pablo, if you go one millimeter lower I’ll get up from this chair, go back to Bogota, and you’ll never see me again!” Id

. Mr. Escobar stops “with a guilty little laugh of resignati on.” Id

. A few seconds later, Mr. Escobar tells Ms. Vallejo to remove the blindfold for her surprise , and she sees more than a dozen fake passports on the floor in front of

USCA11 Case: 19-14894 Date Filed: 10/27/2020 Page: 4 of 235 her , all belonging to him. See id

. at 15. When she tries to get a closer look, he puts handcuff s around her ankle and attaches them to the chair. See i d

. After looking at the passports for some time, Mr. Escobar puts th em back in the safe, lays the revolver on a desk, removes the handcuffs, and carries Ms. Vallejo to the bed. See id

. at 16. 2
In “That Palace in Flames,” Ms. Vallejo writes about a meeting she had with Mr. Escobar and a man named Ivan Marino Ospina. See i d

. at 22. The meeting
ta kes place in Mr. Escobar’s e state near Medellin. See i d . at 21. Mr. Escobar tells Ms. Vallejo that he is going to introduce her to Mr. Ospina, who is a top leader of the M

- 19 guerrilla group . Se e id

. Mr. Escobar describes Mr. Ospina as “the toughest of all comandantes” and tells her that Mr. Ospina is not afraid of him. See id

. He further warns her that Mr. Ospina is “very high” in the M

- 19 command hierarchy.
See i d . at 22. Ms. Vallejo then proceeds to describe Mr. Ospina’s appearance: I imagine that the Amazonian commander will look like an arm y sergeant and wear camouflage, that he’ll see me as an intruder in a meeting of very macho men, and that he’ll do everything humanly possible to get rid of me so that Pablo will stay and talk about money. Ivan Marino Ospina is a man of medium build, blunt features, wispy hair, and a mustache, and beside him Escobar looks like Adonis. . . . I realize immediately that the legendary guerilla chief really isn’t afraid of Pablo or of anyone else, because from the moment he lays eyes on me he doesn’t take them f rom my face, my body, my legs; he has an inflamed gaze that to this day I don’t remember ever seeing in another man. The M

- 19 leader is wearing civilian clothe s. . . . USCA11 Case: 19-14894 Date Filed: 10/27/2020 Page: 5 of 236 Id . After chatting for a few minutes, Ms. Vallejo leaves the room. See i d . at 23.
W hen she returns, she pauses outside the door listening to the conversation between Mr. Escobar and Mr. Ospina. See i d

. She overhears Mr. Ospina say ing that Mr. Escobar owes him a million dollars. See i d

. Ms. Vallejo reenters the room, and after a minute or two asks Mr. Ospina why he joined the revolutionary fight. See i d . at 24. He replies by telling her about atrocities committed by conservative hit squads, called birds, against his family. See
i d

. Ms. Vallejo s peaks to Mr. Ospina about her own family’s experience with the birds. See i d

. She tells Mr. Ospina that she quit “the highest

- paid job on television for refusing . . . to refer to your group as a ‘band of criminals.’” Id . at 25. Mr. Ospina seems surpri sed , and Mr. Escobar interrupts to add that M s . Vallejo had already been fired from another job for supporting the creation of a technicians’ union. See id

. After Mr. Ospina leaves, Ms. Vallejo asks Mr. Escobar what the million dollars is for. See i d

. He answers , “[t]o recover my files and set them on fire. And without a record, there’s no way they can extradite me.” Id . He explains that in a few weeks the Colombia Constitutional Court will begin to consider his case for extradit ion to the United States , and says that there are six thousand files of evidence against him at the Palace of Justice. See i d . 25

– 26.

USCA11 Case: 19-14894 Date Filed: 10/27/2020 Page: 6 of 237 Ten days later , Mr. Ospina is killed in a confrontation with the army. See i d

. at 27. Nearly three months later, an arme d M

- 19 rebel group seizes the Palace of Justice. See i d . at 29. During the siege, the M

- 19 rebel group make s various political demands

. See id

. A fire breaks out , destroy ing thousands of documents. See i d . at 29

– 30. Months later, Ms. Vallejo learns from Mr. Escobar that he paid Mr. Ospina one million dollars and promised another one million dollars in arms and financial aid down the line for the attack on the Palace of Justice

. See i d . at 38. He adds that the weapons and munitions did not make it o n time because the plan had to be moved
up when the Constitutional Court was going to start to study the extradition case , “and the evidence against us was overwhelming.” Id . at 38

– 39.
B In October of 2012, Narcos Productions started producin g the television series
Narcos , which tells the story about the Colombian drug trade. Gaumont Television
USA distributed the series throughout international markets. Netflix made the series available for public viewing on its internet

- based streaming vide o service , and licensed the first season of Narcos to be broadcast on Univision. In her complaint, Ms. Vallejo claims that two scene s from Narcos infringe on her copyrigh t

. First, she assert s that a scene from s eason o ne, e pisode 103 , of Narcos is similar t o “The Caress of a Revolver” because it is a sex scene between Mr.

USCA11 Case: 19-14894 Date Filed: 10/27/2020 Page: 7 of 238 Escobar and a character named Valeria Velez (who is supposed to be Ms. Vallejo) involving a gun

. Second, she contends that a scene from s eason o ne, e pisode 104 , of Narcos

— portr aying a meeting between Mr. Escobar and a character named “Ivan” who is a leader in M

- 19

— is similar to “That Palace in Flames.”
1 In season one, episode 103 , of Narcos , the scene at issue opens with Ms. Velez in a luxurious bedroom

. S he is already tied to the bed by her wrists and is blindfolded . She is wearing a bra, panties, a garter belt , and stockings

. The actor playing Mr. Escobar’s character is holding a newspaper that refers to h im as “un Robin Hood Paisa.” He approaches the bed while holding a gun and tells Ms. Velez that his name is everywhere

— in newspapers, magazines. When he gets to the side of the bed, he throws the gun on the bed and straddles Ms. Velez. Mr. Escobar tell s her that she is going to have to pay for exposing him to so much publicity , as he pulls off the blindfold from her eyes and leaves his arm resting on her shoulder with his hand in her hair. She replies that she will pay anything he wants. Mr. Escobar s tarts caressing Ms. Velez with the gun and , while doing so, tells her that she is going to help get him elected to congress. She responds “Yes, Pablo. Yes,” while he continues to caress her with the gun. D.E. 79

- 7. Though not explicitly shown, the impli cation is that Mr. Escobar is using the gun to either penetrate Ms. Velez or touch her genitalia. Next, Ms. Velez can be

USCA11 Case: 19-14894 Date Filed: 10/27/2020 Page: 8 of 239 seen climaxing. The scene ends with them sharing a kiss and laying down on the bed with Mr. Escobar on top of Ms. Velez

. 2
In seaso n one, episode 104 , of Narcos , Mr. Escobar and some of his associates are discussi ng the fate of another drug kingpin who was extradited to the United
States. One of them says that a motion has been filed before the Colombian Supreme Court challenging the legality of extradition, which is going to be considered this week. Another associate says , “[w]e’re ne x t, aren’t we?” D.E. 81. Mr. Escobar says that a jail in the United States is worse than death and adds : “ B ut remember, they want someone more than they want us. So, brothers, it’s time to give them what they want, isn’t it?” Id

. The meeting scene in Narcos opens with Mr. Escobar sitting in a room with a man named Ivan. Mr. Escobar is trying to strike a d eal with Ivan, who seems relatively young, has a beard, mustache, and is dressed in civilian clothes. Ivan is leaning back o n the couch while Mr. Escobar is leaning forward on the edge of a chair . There are several armed men in the room. Ivan tells Mr. Escobar that he did not think their paths would cross again. He continues by implying that the attack on the Palace of Justice would not be that simple ; it w ould require more men and weapons, and there would be casualties. Ivan then inquires about how much money is involved. Mr. Escobar answers two million

USCA11 Case: 19-14894 Date Filed: 10/27/2020 Page: 9 of 2310 dollars. Ivan states that it is too dangerous and Mr. Escobar counters that “fighting a revolution comes with sacrifice

. ” Id

. The camera then cuts to a wo man, not Ms. Velez, wearing scrubs , who get s out of a taxi in front of a house and wal ks th rough the house’s outside gate. The scene cuts away from the woman and back inside to the meeting between Mr. Escobar and Ivan . A knock is heard. One of the armed men answers the door while Mr. Escobar presses Ivan by telling him that “it is our duty to fight to the very end. We have a [ ] historical obligation. We can’t ignore it.” Id . The woman in scrubs i s then escorted into the room and Ivan says “[m]eet Pab lo Escobar.” Id . Mr. Escobar stands, and the men agree that they have a deal. Mr. Escobar and his men leave. The woman in scrubs

— Ivan’s comrade in arms, viewers are led to assume

— asks Ivan , “[w]hat the hell is this?” Id . He tells her that he and Mr. Escobar have reached an agreement involving an exchange of money that is “necessary for the revolutionary fight.” Id

. H e does not explain to her what the agreement entail s, and she tells him , “I fight for the people, not for the drug traffickers.” I d

. In the next scene, the woman in scrubs approaches one of her co

- workers and asks to speak to the co

- wo r ker’s husband, who works at the United States Embassy. She tells her co

- worker that “Pablo Escobar is planning something with the communist group cal led M

- 19. I don’t know what it is, but I know it is going to be bad.” Id . The co

- worker can be seen calling her husband , but by the time she tells

USCA11 Case: 19-14894 Date Filed: 10/27/2020 Page: 10 of 2311 him, news of the raid on the Palace of Justice is breaking on television. T he voiceover of the series’ na rrator then takes over: Financed by Escobar, the M

- 19 guerillas stormed the Palace of Justice and occupied the Supreme Court. They took over a hundred hostages and made a bunch of demands about the redistribution of wealth, and an end to injustice and tyra nny, but it was all bullshit. The military attacked, dozens of lives were lost in the carnage, including half the Colombia n Supreme Court justices. Most of the M

- 19 were killed, some escaped, but not before accomplishing their true goal: setting fire to th e room that contained six hundred thousand pages of evidence against Escobar. The entire case against him turned to ash. In the United States, the mafia makes witnesses disappear so they can’t testify in court. In Colombia, Pablo Escobar made the whole cou rt disappear.

Id

. During the narration, a fictional film of the raid and military response is played

. F ive men, including Ivan, are shown breaking into a file room in the Palace of Justice, splashing gasoline on the files, and lighting them on fire.
II Based on these scenes from episodes 103 and 104 of Narcos , Ms. Vallejo brought a copyright infringement claim against the defendants. After reviewing both the m emoir and the Narcos scenes at issue , the district court granted summary judgment in favor of the defendants. Ms. Vallejo now appeals. We review de novo the district court’s grant of summary judgment, viewing the evidence in the light most favorable to the party opposing the motion. See L eigh

USCA11 Case: 19-14894 Date Filed: 10/27/2020 Page: 11 of 2312 v. Warner Bros., Inc. , 212 F.3d 1210, 1214 (11th Cir. 2000). “Summary judgment is only proper when there are no genuine issues of material fact” and the moving party is entitled to judgment as a matter of law. Id

. Ms. Vallejo argues that “summary j udgment is often inappropriate in copyright infringement cases due to their inherent subjectivity.” App ellant’s Br. at
25. See also Beal v. Paramount Pictures Corp. , 20 F.3d 454, 459 (11th Cir. 1994) (stating that “[s]ome courts have observed that summary judgment is peculiarly inappropriate in copyright infringement cases due to their inherent subjectivity ” ) (citing Hoehling v. Universal City Studios, Inc. , 618 F.2d 972, 977 (2d Cir. 1980) )

. We, however, have affirmed the grant of “summary judgmen t in infringement cases when it is clear that the moving party is entitled to judgment as a matter of law.” Id

. III To succeed o n a copyright infringement claim, the plaintiff must prove “ (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. ” Feist Publ ’ n, Inc., v. Rural Tel

. Serv

. Co. , 499 U.S. 340, 361 (1991). In their motion for summary judgment, the defendants conceded that Ms. Vallejo holds a valid copyright in her m emoir Amando a Pablo, Odiando a Escobar (2013). T h us , only the copying element is contested

. The copying element i s satisfied if (1) “the defendant , as a factual matter , copied portions of the plaintiff’s” work, and (2) “as a mixed issue of fact and law,

USCA11 Case: 19-14894 Date Filed: 10/27/2020 Page: 12 of 2313 those elements of the [work] that have been copied are protect ed expression and of such importance to the copied wo rk that the appropriation is actionable.” MiTek Holdings, Inc. v. Arce Eng ’g Co., Inc. , 89 F.3d 1548, 1554 (11th Cir. 1996). Because the defendants admit ted that they had access to and copied from Ms. Vallejo’s

m emoir, the district cour t assumed that the first prong of copyright infringement was
met

. As a result, this “appeal centers on the subsequent inquiry of 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 ”

m emoir. See Peter Letterese & Assocs., Inc. v. World Inst. of Scientology Enters. Int’l , 533 F.3d 1287, 1301 (11th Cir. 2008) (citations and internal quotation marks omitted). We may affirm the grant of “summary judgment for a defendant if the similarity between the works concerns o nly noncopyrightable elements, or if no reasonable jury upon proper instruction would find that the two works are substantially similar.” Beal , 20 F.3d at 459. A Before determining whether there is substantial similarity between two works, we must firs t separate the unprotected facts from the protected expression of those facts. See Cable/Home Commc’n Corp. v. Network Prods., Inc. , 902 F.2d 829, 843 (11th Cir. 1990) (citing Harper & Row, Publishers, Inc. v. Nation Enters. , 471 U.S.

USCA11 Case: 19-14894 Date Filed: 10/27/2020 Page: 13 of 2314 539, 556 (1985)) . This means that we must determine what parts of Ms. Vallejo’s

m emoir are protected under copyright law and which parts are not

. 1 We have long held that “copyright protection extends only to an author’s expression of facts and not to the facts t hemselves.” Miller v. Universal City Studios,
Inc. , 650 F.2d 1365, 1368 (5th Cir. 1981). An author “ may not claim that the facts are original with him although there may be originality and hence authorship in the manner of reporting, i.e. , the expression , of the facts.” Id . (quotations and citations omitted). “ [ T ] he mere use of the information contained in a [work] without a substantial copying of the format does not constitute infringement. ” Id

. at 13 69

– 70

. ( citations and internal quotation marks omi tted ). A person who reports new facts for the first time cannot claim copyright protection in the further dissemination of those facts. See Feist , 499 U.S. at 353 (citing Miller , 650 F.2d at 1372)

. With these principles in mind, we address which parts of Ms. Vallejo’s m emoir constitute unprotected facts and which parts constitute the protected expressions of those facts. 2

1 Ms. Vallejo argues that the district court erred in failing to articulate a legal standard requiring it to separate protectable copyright elements from unprotectable elements. We are not convinced. The district court articulate d and appl ied the correct legal standard. First, it stated that the only “issue for the [c] ourt is whether there is ‘ substantial similarity ’ between the Narcos scenes at issue and the protectable, original elements of [Ms. Vallejo] ’s M emoir. ” D.E. 120 at 1 0 (emphasis added). Second, i n its analysis, the district court rep ea tedly separated the unprotectable facts in the m emoir from the protectable expression of those facts

. See id . at 12, 15 (separating the unprotectable facts from the protectable expressio n of facts ). 2 Ms. Vallejo contends that her m emoir is a fictional collective work of historical research regarding Mr. Escobar and is written in the style of “magical realism.” In making this argument,

USCA11 Case: 19-14894 Date Filed: 10/27/2020 Page: 14 of 2315 Ms. Vallejo has repeatedly admitted that the facts reported in her m emoir ar e
true. At her deposition, Ms. Vallejo testified that her foreplay with Mr. Escobar , while he was holding a gun , had taken place. She similarly acknowledged that the meeting between Mr. Ospina and Mr. Escobar , where they planned the attack on the Palace of Justice and where Mr. Escobar agreed to pay two million dollars , w as also
true. We therefore conclude that th ose facts , standing alone, do not enjoy copyright protection and could have been freely copied by the defendants in writing the Narcos series. We now turn to those part s of Ms. Vallejo’s m emoir that do enjoy copyright protection

. These are the expression of the facts contained in the publication

. See Miller , 650 F.2d at 1368. In other words, Ms. V allejo has copyright protection in the way that she set her “characters, theme, plot, setting, and mood and pace. ” Herzog v. Castle Rock Ent

. , 193 F.3d 1241, 1258 (11th Cir. 1999). This protection includes the purported “magical realism” style in which she wrote her m emoir , a s well as the alleged scenes and dialogues that she recreated after 20 years from her
own memory .

Ms. Vallejo attempts to avoid well

- settled copy right precedent which provides that works that are considered non

- fiction or a compilation of facts receive only thin copyright protection. See Feist , 499 U.S. at 349. Although it is true that fictional works based on historical research may receive more copyright protection than a pure non - fiction work or a compilation of fact s , the historical facts contained within the fictional work remain unprotected. See Mil ler , 650 F.2d at 1368.

USCA11 Case: 19-14894 Date Filed: 10/27/2020 Page: 15 of 2316 B Having separated the unprotected facts from the expression of those facts in Ms. Vallejo’s m emoir, we now address whether the two Narcos scenes at issue here are substantially similar to the expression of facts in the two chapters of Ms. Vallejo’s m emoir, “ The Caress of a Revolver ” and “ Th at Palace in Flames .” 1 Ms. Vallejo a rgues that the district court erred in concluding that the scene in episode 103 of Narcos was not substantially similar to her chapter “ The Caress of a Revolver. ” We are not p ersuaded. She maintains that the defendants appropriated more than mere facts

. In her view , they misappropriated her artistic expression “including, her personal choices of details, and subjective observations, such as the profiling of characters and her illustration of the interplay of the characters.” App ellant ’s Br. at 43

– 44. She points to the following similarities : (1) Ms. Velez is blindfolded with a black blindfold ; (2) Mr. Escobar uses a gun to caresses her neck and chest in a m enacing way; (3) she appears aroused ; (4) the s cene takes place in an elegant room ; ( 5 ) she is bound to furniture ; ( 6 ) she acts in a submissive manner ; ( 7 ) she does not appear to be afraid of Mr. Escobar ; ( 8 ) Mr. Escobar grabs her by the hair ; and ( 9 ) Mr. Escobar uses the gun in the same manner that she described in her memoir

.

USCA11 Case: 19-14894 Date Filed: 10/27/2020 Page: 16 of 2317 The first two alleged similarities

— the blindfold and the use of the gun by Mr. Escobar

— are unprotected facts , as Ms. Vallejo admitted that they indeed took place

. The rest of the alleged similarities do not copy Ms. Vallejo ’s expression of facts in the m emoir. In the m emoir, Ms. Vallejo is sitting in a low

- backed chair , and she is handcuffed by one of her ankle s after Mr. Escobar stops using the gun

. In the Narcos episode, both of Ms. Velez’s arms are bound to a bedpost before Mr. Escobar uses the gun . Contrary to her suggestions, in her m emoir Ms. Vallejo does not act in a submissive manner towards Mr. Escobar ; instead , she verbally spars with him by telling him that “I would never underestimate a criminal with delusions of a schizophrenic.” D.E. 76

- 1 at 13. She also threatens Mr. Escobar with walking ou t if he continues to move the gun any lower . The Narcos episode , on the other hand, shows Ms. Velez being completely submissive towards Mr. Escobar ; s he agree s to help him run for Congress and allow s him to use the gun any way he wants. Additional diffe rences doom Ms. Vallejo’s arguments that the defendants copied the details of her personal artistic choices

. For example, t he two scenes occur in different settings

. In the m emoir, Ms. Vallejo sits on a low

- backed chair , but in the Narcos episode she is laying o n a bed.
T he defendants did not appropriate Ms. Vallejo’s subjective observations or her characters ’ exchanges . In “ The Caress of a Revolver, ” Ms. Vallejo attempts to portray “an understanding of the manipulation and power dynamics that defin ed

USCA11 Case: 19-14894 Date Filed: 10/27/2020 Page: 17 of 2318 [her] romantic relationship with [Mr.] Escobar.” App ellant ’s Br. at 50. Th ose

“ manipulations and power dynamic” themes are wholly absent from the Narcos episode , where the only person in charge is Mr. Escobar. The mood in both scenes is also quite different , as is evident from the dialogue

. In the m emoir, Ms. Vall e jo describes how being caressed by the gun makes her feel

. Yet the dialogue in the Narcos episode shows Mr. Escobar trying to enlist Ms. Velez to help him r un for Congress. I n Ms. Vallejo’s m emoir, Mr. Escobar takes Ms. Vallejo to his penthouse to show her his fake passports

. I n the
Narcos episode , Mr. Escobar is complaining about all the publicity he is getting and enlists Ms. Velez ’ s help in running for Congress.
In sum, we conclude that the defendants use d unprotectable facts from Ms. Vallejo’s memoir and did not copy her expression of those facts because the plot, setting, mood , and the characters ’ interplay are not substantially similar. T he district
court therefore did not err when it ruled that no reasonable juror c ould find that “ The Caress of a Revolver ” and the scene from episode 103 of Narcos were substantially similar.
2 Ms. Vallejo similarly maintains that the district court erred when it found that the meeting scene in episode 104 of Narcos was not substantially similar to her chapter “That Palace in Flames.” We disagree.

USCA11 Case: 19-14894 Date Filed: 10/27/2020 Page: 18 of 2319 Ms. Vallejo points in her brief to the following similarities between her chapter and the Narcos scene , including, (1) o ne of her m emoir chapter s is titled “That Palace in Flames,” and episode 104 in Narcos i s titled “The Palace in Flames ; ” (2) Mr. Escobar and Ivan are in a hideout ; (3) Ivan has a beard ; (4) Ivan is wearing civilian clothing, and is of medium buil d with blunt features ; ( 5 ) Ivan discusses the risk of casualties and the danger ; ( 6 ) Mr. Escobar offers to pay two million dollar s ; ( 7 ) Mr. Escobar uses revolutionary overtones to persuade Ivan ; and ( 8 ) Mr. Escobar is convinced that extradition is imminent.
Our compar ison of “That Palace in Flames” and the meeting scene in episode
104 of Narcos , indicate s that they are not substantially similar. S ome of the alleged similarities constitute unprotectable facts , such as (1) the name of the M

- 19 rebel leader as Ivan or Mr. Ospina, (2) Mr. Escobar offering the two million dollars as payment , and ( 3 ) the physical de scription of Ivan

. 3
T he Narcos scene , moreover, does not share or copy the protected expression found in “That Palace in Flames,” as the plot, theme, dialogue, and tone are dissimilar . First, the details of the plot are different ; for example, Ms. Vallejo’s counterpart character in Narcos , Ms. Velez, is not even present in the Narcos scene. Instead, t he Narcos scene introduces a new female character who did not appear in

3 Furthermore, though it is true that Narcos episode 104 has an almost identical title as the chapter in Ms. Vallejo’s memoir, “[w]ords and short phrases such as names, titles, and slogans” are not subject to copyright protection. See 37 C.F.R. § 202.1(a).

USCA11 Case: 19-14894 Date Filed: 10/27/2020 Page: 19 of 2320 the memoir, and who tries to thwart the attack by informing someone with a connection to the United States Embassy

. So me of the theme s are likewise different

. The m emoir implies that Mr. Ospina is attracted to Ms. Vallejo by saying that he could not take his eyes from her , but that them atic element cannot be present in
Narcos because , again , her character ( Ms. Velez ) is not present in the scene.
T he dialogue and tone differ as well

. I n “That Palace in Flames,” Ms. Vallejo tells Mr. Ospina that she shares similar beliefs as him by telling him that she quit her job for refusing to call the rebels a “band of criminals .” D.E. 76

- 1 at 2 5

. T he meeting scene in Narcos focuses solely o n the conversation between Mr. Escobar and Ivan regarding the attack on the Palace of Justice , and it is Mr. Escobar who uses revolutionary rhetoric to convince Ivan to carry out the attack

. We conclude, therefore, that the plot, theme, dialogue, and tone of “That Palace in Flames” and the Narcos meeting scene in episode 104 are not substantially similar

. W e therefore agree with the district court that no reasonable jury c ould find that the two works are substantially similar. C Ms. Vallejo also contends that the district court failed to recognize the legal distinction between historical and non

- historical facts in assessing whether the facts she reported in her memoir should b e given copyright protection. Essentially, she asserts that so - called historical fact s lack copyright protection because they are

USCA11 Case: 19-14894 Date Filed: 10/27/2020 Page: 20 of 2321 newsworthy and that so

- called non - historical fact s are protected by copyright law because they are personal . We are not pers uaded by Ms. Vallejo’s distinction

. First, we are skeptical of Ms. Vallejo’s argument that the facts she reported regarding Mr. Escobar in the chapters at issue are not of historical importance. Given that Mr. Escobar is considered one of the biggest dr ug lords in the history of Colombia , and that his life has been fully scrutinized by the media , w e expect that
most fact s about Mr. Escobar , particularly new one s , will receive national and international attention. Second, we are not convinced that the purported distinction between historical fact s and non

- historical facts is legally sound

. Ms. Vallejo fails to cite any case s or authorities that s upport her proposition. The cases that Ms. Vallejo relies on do not d ifferentiate between historical facts and non

- historical facts , and merely stand for the unremarkable proposition that a defendant cannot copy verbatim the plaintiff ’s work even if the work is considered non

- fiction. See Harper & Row , 471 U.S. at 548

– 49 ( finding copyright infringement where the defendant admitted to copying verbatim portion s of the plaintiff’s work); Scales v. Webb , No. 1:15CV192, 2016 WL 1267756, *3 (M.D.N.C. Mar. 30, 2016) (finding that the defendant had copied verbatim substantial porti on s of the plaintiff’s work , including unprotected facts and protected expression).

USCA11 Case: 19-14894 Date Filed: 10/27/2020 Page: 21 of 2322 Third, in Feist the Supreme Court stated that “ facts

— scientific, historical, biographical, and news of the day” do not receive copyright protection

. Feist , 499
U.S. at 347

– 48 (denying protection to historically non

- significant telephone numbers). See also 1 Nimmer on Copyright § 2.11 [A] (2019) ( explaining that

“ [c] ourts have denied copyright protection not only t o raw historical facts , but also to facts set forth in biographical works, in news stories, and in other forms of expression ” )

. W e decline the invitation to distinguish between so - called historical facts and so - called non - historical facts for purposes of copyright protection. Ms. Vallejo next claims that the district court erred by not applying a modified substantial similarity standard when assessing whether substantial similarity exists between works in two different types of media. She reli es on Kustoff v. Chaplin , 120 F.2d 551, 561 (9th Cir. 1941) , and states that the correct test to measure whether two works in different media are substantially similar , and whether infringement of a literary story has occurred , is whether “an ordinary obse rver is led to believe that the film is a picturization of the story.” Appellant’s Br. at 4 1

– 42

. Again, we disagree.
W e do not believe that the test advanced in Kustoff still applies. R ecent decisions from the Ninth Circuit have not applied such a modified standard , and have
i nstead used the same substantial similarity test used in our circuit. See Litchfield v. Spielberg , 736 F.2d 1352, 1356

– 57 (9th Cir. 1984) (applying the substantial

USCA11 Case: 19-14894 Date Filed: 10/27/2020 Page: 22 of 2323 similarity test between works from two different types of med ia

— a musical play and a movie); Berkic v. Crichton , 761 F.2d 1289, 1292 (9th Cir. 1985) (applying the substantial similarity test between a book and a movie). See also 4 Nimmer on Copyright § 13.03[E][1] (stating that the ordinary observer or audience te st has not been embraced by the federal court s of appeals). W e therefore refuse to divert from our current substantial similarity test. IV We affirm the district court’s grant of summary judgment in favor of the defendants. AFFIRMED. USCA11 Case: 19-14894 Date Filed: 10/27/2020 Page: 23 of 23