Historical fiction is a staple of media, from books to television to films. It also frequently presents questions and challenges as to copyright and ownership and claims over a particular story, or versions of that story. It’s certainly more nebulous than work of pure fiction, in which cases it’s far easier to tell when another work is derivative, even when questions of intent and coincidence muddle things.
The latest example of dispute between those with claims on stories pulled from real life comes from the Netflix series “Narcos,” a show about drug cartels and law enforcement and the dance between the two; specifically, the case in question involves a major figure in both show and public consciousness, the Colombian drug kingpin Pablo Escobar.
A Colombian journalist recently saw her copyright suit against Netflix and Gaumont Television decided in favor of the studio/streaming service in a summary judgment. Virginia Vallejo claimed in the suit that the show’s portrayal of Escobar infringed upon her own book about her interactions with the man, Loving Pablo, Hating Escobar. Netflix countered the claim by arguing that Vallejo no longer had standing to pursue the case as she had made a deal for the movie rights to her book, but as the book had yet to be optioned under the deal, the claim found no purchase in court.
After suffering a setback in May that narrowed the scope of the suit to more specific details from the book, Vallejo’s case was dealt the fatal blow when District Court Judge Rodney Smith issued a summary decision for the defendants, citing differences between Vallejo’s depiction of Escobar and the show’s, and ultimately determining that any similarities between the two works that may exist are ultimately not to the level that would warrant protection.
Therein lies the inherent difficulty of making works about particular historic events or figures: there’s plenty of works out there about either, and plenty of books waiting to be optioned as movies or shows. And it’s not even limited to works based in non-fiction: “twin films” about the same subject released within close proximity to one another have been a thing for years, and have undoubtedly caused no small amount of consternation among the studios that have had to follow the “original” in box office release. Surely it’s a frustration for many an author who feel like they’re missing out, or have had their work misappropriated in some way, but that would seem to be the risk they take in taking on living figures in their writing.
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