IP Law Daily Ad pitch for Pepsi Super Bowl halftime show not substantially similar to aired commercial
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Thursday, November 14, 2019

Ad pitch for Pepsi Super Bowl halftime show not substantially similar to aired commercial

By Brian Craig, J.D.

In granting summary judgment in favor of Pepsi, the court concluded that the copyrighted ad pitch materials and the halftime commercial aired by Pepsi had few, if any similarities.

In a copyright infringement and breach of contract case brought by an advertising agency against Pepsi stemming from an ad pitch for the 2016 Super Bowl halftime show, the federal district court in New York has dismissed the suit in favor of Pepsi on summary judgment. The court found that the ad pitch materials and Pepsi’s halftime commercial were not substantially similar based on differences in the concept, feel, settings, and themes to support infringement. The court also concluded that Pepsi was entitled to summary judgment on the breach of contract claim because the preliminary agreement lacked specific terms to be enforceable, as there were 14 different agencies pitching Pepsi for the show (Betty, Inc. v. Pepsico, Inc., November 13, 2019, Briccetti, V.).

Connecticut based advertising agency Betty, Inc., was one of 14 different ad agencies that pitched Pepsico, Inc. ("Pepsi") for the 2016 Super Bowl halftime show sponsored by Pepsi. Pursuant to a 2014 agreement, Pepsi engaged Betty on a non-exclusive basis to perform marketing services. Pepsi employees encouraged the agencies to use music in their pitches. Betty presented a concept titled "All Kinds/Living Jukebox," opened outside a "giant Brooklyn(like) warehouse" with a man playing a rendition of "The Joy of Pepsi" on "acoustic guitar." In Betty’s concept, as the camera moves through the warehouse, the genres start to change and unfold while the song remains the same. As the genres change, so do the fashion and vibe of the room. That same day, the Marketing Arm ("TMA"), another advertising, presented three proposals for the halftime commercial. One of the concepts, titled "The Joy of Dance," was built on the foundation of the Britney Spears "Now and Then" commercial, featuring Christopher Walken dancing through a timeline of over 50 years, set in five eras, moving through several rooms.

Ultimately, Pepsi selected TMA’s "The Joy of Dance" for its halftime commercial. On February 7, 2016, the halftime commercial aired. After the commercial aired, Betty applied for and was issued a copyright registration for its written pitch materials, including for the "All Kinds/Living Jukebox" concept. Betty then sued Pepsi for copyright infringement and breach of contract. Pepsi filed a motion for summary judgment.

Copyright infringement. The court concluded that the ad pitch and the performed halftime commercial were not substantially similar. In the absence of direct evidence, copying can be proven by showing that the defendant had access to the copyrighted work and the substantial similarity of protectable material in the two works. To assess substantial similarity, courts look at the total concept and feel, theme, characters, plot, sequence, pace, and setting of the copyrighted work and the allegedly infringing work. Here, the court found there were few, if any similarities, between Betty’s protected pitch materials and Pepsi’s halftime commercial. To the extent there were any similarities, those similarities arose from nonprotected elements such as ideas, scenes a faire, and Pepsi’s prior work. The court found that the themes were different. Further, the concept and feel of Betty’s pitch and Pepsi’s halftime commercial were not substantially similar. Betty’s presentation as darker than the actual halftime commercial. Between the acoustic music, the warehouse, and the ending on a group gathered around a trash can fire, these images evoked a darker and moodier concept and feel. Betty’s concept was further darkened by the genres of music Betty selected. Furthermore, the settings were also meaningfully different.

In sum, there were few, if any similarities, between Betty’s protected pitch materials and Pepsi’s halftime commercial. Therefore, the court granted summary judgment on the copyright infringement claim.

Breach of contract. The court also granted summary judgment in favor of Pepsi on the breach of contract claim, concluding that the preliminary agreements did not create binding obligations. In some circumstances, preliminary agreements can create binding obligations. For a so-called Type II preliminary agreement to exist, courts consider the following five factors: (1) whether the intent to be bound is revealed by the language of the agreement; (2) the context of the negotiations; (3) the existence of open terms; (4) partial performance; and (5) the necessity of putting the agreement in final form, as indicated by the customary form of such transaction. In the present case, the court concluded the undisputed evidence shows there was no preliminary Type II agreement. Betty knew it was one of 14 agencies pitching Pepsi. There were several open terms with the 2014 preliminary agreement, and Betty did not partially perform. Because the court could not find any contractual obligation to negotiate, in good faith or otherwise, the preliminary agreement was unenforceable.

This case is No. 7:16-cv-04215-VB.

Attorneys: Mark Scott Gregory (Martin LLP) for Betty, Inc. Elizabeth Lafferty (Lerner David Littenberg Krumholz & Mentlik LLP) and Michael S. Elkin (Winston & Strawn LLP) for Pepsico, Inc.

Companies: Betty, Inc.; Pepsico, Inc.

MainStory: TopStory Copyright NewYorkNews

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