Pepsi Moves for Summary Judgement in 2016 Super Bowl Ad Suit

On April 1, 2019, Pepsi moved for summary judgement in the lawsuit over its 2016 Super Bowl halftime commercial that featured artist Janelle Monảe. As we have previously reported, back in July 2016, Betty Inc., a boutique Connecticut advertising agency filed a lawsuit for copyright infringement, breach of contract, unjust enrichment, conversion, and unfair competition against the soft drink giant PepsiCo. According to the lawsuit, Betty Inc. claimed that Pepsi’s 2016 ad was “fundamentally based” on an idea that Betty Inc. previously pitched to Pepsi, in October 2015.

Now, Pepsi claims that its 2016 Super Bowl halftime commercial was in fact a play on an old Pepsi commercial, starring Britney Spears, called “Now and Then,” which aired during the 2001 Super Bowl. According to the motion, “[i]t is ironic that Betty accuses Pepsi of infringement, considering that it was Pepsi that popularized the music-through-the-ages commercial with its highly successful and memorable ‘Now and Then’ Super Bowl commercial.”

Pepsi also claims that the only similarities between Pepsi’s 2016 Super Bowl halftime commercial and Betty Inc.’s October 2015 pitch were the “basic idea” of having a musical performer move through the commercial with scenery changes. Specifically, Betty Inc.’s October 2015 pitch involved a commercial that “starts outside a giant Brooklyn(like) warehouse” with “the camera perspective of someone walking in” while “[o]utside the door, a man plays an acoustic guitar singing an acoustic rendition of the Joy of Pepsi.” However, Pepsi was “simply not interested” in Betty Inc.’s pitch as it was “very dark” and “not on brand.”

According to Pepsi, whatever elements in the final 2016 Super Bowl halftime commercial and Betty Inc.’s October 2015 pitch are simply broad concepts that are unprotectable ideas or scenes.

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