Pepsi Scores Dismissal Of Copyright Dispute Over Super Bowl Ad

Advertising Law

An advertising agency lost its attempt to bring copyright infringement and breach of contract claims against Pepsi after the beverage giant rejected its Super Bowl ad pitch.

Connecticut-based Betty entered into a three-year agreement with Pepsi in 2014. Pepsi engaged the agency on a nonexclusive basis and retained sole discretion to determine whether to do business with Betty.

In late 2015, Pepsi began planning for its upcoming halftime commercial during the 2016 Super Bowl. One of 14 ad agencies that pitched to Pepsi, Betty presented eight concepts, including one titled “All Kinds/Living Jukebox.”

The concept opened outside a giant Brooklyn-like warehouse with a man playing a rendition of “The Joy of Pepsi” on acoustic guitar. As the camera moved through the warehouse, the genres (along with the fashion and the vibe) changed and unfolded while the song remained constant. The commercial ended on the other side of the warehouse with a doo-wop/a cappella group standing around a fire lit in a trash can.

Finding the pitch from Betty “dark” given the warehouse setting, the use of heavy metal music and the ending with singers around a trash can, Pepsi selected a different pitch dubbed “The Joy of Dance” from The Marketing Arm (TMA), another advertising agency. Pepsi found the pitch from TMA consistent with its prior commercials.

The commercial aired on February 7, 2016, opening on a jukebox playing a record with the Pepsi logo. Singer Janelle Monae moved from room to room through three different eras—dancing from a 1950s-style diner into the 1980s before moving on to the 1990s/2000s—with the ad ending as the camera zoomed out to show the three different-colored rooms combined into the Pepsi logo.

Betty obtained a copyright registration for its pitch and filed suit against Pepsi, alleging that it aired a commercial that was substantially similar to Betty’s copyrighted version. Pepsi responded with a motion for summary judgment.

U.S. District Judge Vincent L. Briccetti granted the motion, ruling that Pepsi did not copy Betty’s protected material, as the undisputed evidence demonstrated that the overall concept, feel, setting, themes, characters, pace and sequence of Betty’s written presentation were not substantially similar to Pepsi’s halftime commercial.

Since the parties did not dispute that Betty had obtained a valid copyright registration and the parties agreed that Pepsi had access to Betty’s written presentation, the analysis turned on the second part of the substantial similarity test, the court explained: “whether, in the eyes of the average lay observer, Pepsi’s halftime commercial was substantially similar to the protectible expression in Betty’s presentation.”

Betty’s presentation was darker than the halftime commercial, with the acoustic music, warehouse and ending on a group gathered around a trashcan evoking “a darker and moodier concept and feel,” Judge Briccetti wrote. “Betty’s concept is further darkened by the genres of music Betty selected—acoustic guitar, metal, rock, classical and doo wop/acapella [sic]. Whereas Pepsi’s halftime commercial takes place in three bright rooms featuring pop music of different eras and a pop version of ‘The Joy of Pepsi.’”

The settings were also meaningfully different (the warehouse versus the brightly lit rooms in the commercial), as were the characters (as opposed to Betty’s multiple performers, the commercial features just Monae throughout), the themes, and the pace and sequence of the two works, the court found.

Betty’s argument for substantial similarity pointed to the fact that its written materials proposed a jukebox and the Pepsi commercial opened on a jukebox. But the agency’s sole reference to a jukebox was the title, which was “merely an idea, rather than an expression of an idea and therefore does not enjoy copyright protection,” Judge Briccetti said.

“In sum, there are few, if any similarities, between Betty’s protected pitch materials and Pepsi’s halftime commercial,” the court wrote. “To the extent there are any similarities, those similarities arise from non-protected elements such as ideas, scenes a faire, and Pepsi’s prior work.”

Judge Briccetti was similarly unpersuaded by Betty’s breach of contract claim, granting summary judgment in favor of Pepsi and closing the case.

To read the opinion and order in Betty, Inc. v. PepsiCo, Inc., click here.

Why it matters: Advertisers such as Pepsi often invite multiple agencies to submit pitches based on a creative brief provided by the advertisers. While in the present case the court sided with Pepsi that Betty’s pitch materials were not substantially similar to Pepsi’s commercial based on the overall concept, feel, setting, themes, characters, pace and sequence, the court could have reached a different conclusion with a slightly modified set of facts. This case should serve as a reminder to advertisers to review their pitch process and make sure they have a good protocol that includes (1) a pitch agreement that addresses copyright ownership issues, especially in cases where the pitch is not selected for further development, (2) a requirement that all participating advertising agencies must sign the pitch agreement prior to receiving the creative brief, and (3) documentation of acceptance or rejection of pitch materials.

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