Beverage giant accused of copying agency Super Bowl halftime spot

 One in a Million

When you spend countless hours each week combing through normally staid complaints, orders and motions, you’re not sure if you should laugh or cry over sentences like this: “Pepsi employees testified [the commercial] felt dark, given the warehouse setting, the heavy metal music, and how it ends on singers standing around a trash can fire.”

We love strings of words like this that will likely never be reassembled in English again. They keep our eyes open.

But let’s discuss the ad in question, and the splash it made – and didn’t make.

Pitched Battle

The commercial in question was a spot pitched by advertising company Betty, one of 14 agencies bidding on work for Pepsi’s prime spot in the 2016 Super Bowl halftime show. By way of background – and for those of you who don’t know or who forget every year right after the game ends – Pepsi has sponsored the show for a long while now, and has featured recurring themes in its Super Bowl spots, including a “dancing through the ages” conceit that it has used several times (see here for a Britney Spears-helmed masterpiece from 2001).

When Pepsi started holding auditions for its 2016 ad, Betty produced several spots, including one titled “All Kinds/Living Jukebox,” which the quote above describes. In the commercial, a man plays the “Joy of Pepsi” theme on an acoustic guitar while the camera pans through a “Brooklyn(like)” (whatever that means) warehouse. The various scenes in the warehouse span musical styles from various eras, ending on a group of doo-wop singers standing around a trash fire.

And the Winner Is…

The ad never made the airwaves, as you may have guessed, but it did spark a lawsuit filed in the Southern District of New York in 2016. Betty alleged that the commercial Pepsi eventually aired ripped off their proposed spot, triggering copyright infringement and breach of contract.

The winning ad, produced by competing agency TMA, was thematically aligned with previous Pepsi ads, including the Britney vehicle. After passing over Christopher Walken and Pharrell Williams for the lead, the company created a spot centered on Janelle Monáe, who dances across three separate rooms, each representing a different musical era – the ’50s, the ’80s and the ’90s/oughts. Her clothes and hairstyle, like those of her background dancers, change appropriately.

The Takeaway

Pepsi moved for summary judgment, arguing that the facts demonstrated no infringement had taken place. The court found in Pepsi’s favor in an opinion issued on Nov. 13.

At the center of the ruling was the argument that “a ‘principle fundamental to copyright law’ is that ‘a copyright does not protect an idea, but only the expression of an idea.’” On that score, the court noted, the winning TMA ad was different from the Betty ad in “overall concept, feel, setting, themes, characters, pace, and sequence.”

“[E]lements that follow naturally from a work’s theme rather than from an author’s creativity,” the court wrote, “do not enjoy copyright protection.” Likewise, the district held that “where an element occurs both in the defendant’s prior work and [in] the plaintiff’s prior work, no inference of copying can be drawn.”

And with that, Betty’s suit made its exit.