The band War filed suit against PepsiCo in California state court in September for using its 1970’s hit, “Why Can’t We Be Friends,” in a recent ad without permission, and it is seeking $10 million in damages.
Pepsi used the song as part of a “saturation” television broadcasting campaign of commercials for its Pepsi Max beverage starting in July.
The band recorded the Grammy-nominated song in 1975, and it claims in the suit that it has become their “signature song.” According to the complaint, “The theme of the song is an integral and interwoven part of a national, multi-media campaign, including heavy Internet presence.”
It was played during the first U.S.-Soviet space mission as a symbol of friendship, and because “of its distinctive, lyric and musical content and massive public exposure, the [song] has attained a powerful secondary meaning to millions of music fans,” according to the complaint.
In the commercial – a remake of a 1985 Super Bowl commercial – a Pepsi Max delivery driver attempts to befriend a Coke Zero driver when the two stop in a diner. While “Why Can’t We Be Friends?” plays, the Coke driver samples – and enjoys – Pepsi Max.
The plaintiffs maintain that Pepsi’s use of the song violates the Lanham Act and the band’s right of publicity, as well as the collective bargaining agreements of both the Screen Actors Guild and the American Federation of Television and Radio Artists. The band seeks $10 million in damages, as well as punitive damages and injunctive relief.
In a statement, the company denied that it failed to receive permission to use the song. “Pepsi has a long history of partnering with iconic celebrities and musicians and we value our relationship with the music and entertainment industry.”
To read the complaint in Brown v. PepsiCo, click here.
To watch the Pepsi commercial, click here.
Why it matters: Could Pepsi have failed to get permission to use the song? The band’s lawyers told reporters that even if the company and its agencies obtained the rights from the song’s publishers, Pepsi should have also negotiated with the band.