Judge refuses to dismiss Pepsi Cola ad copyright case

Missouri residents may know that companies spend hundreds of millions of dollars each year to advertise their products during the Super Bowl. The game’s halftime extravaganza generally features top performers and Hollywood-level production values, and companies with huge marketing budgets often clamor for the few advertising spots available. Pepsi Cola paid for such an ad during the 2016 Super Bowl halftime show to promote its brand and attract new customers, but the decision has left the company mired in a copyright dispute with a Connecticut-based advertising agency.

The advertising agency claims in its lawsuit that it came up with the idea of an ad using a human jukebox performing songs from various decades and musical genres. The agency alleges that Pepsi refused to pay the agreed $5,000 for the concept before shooting the commercial using the soul singer and actress Janelle Moore. Reports suggest that Pepsi had a change of heart and agreed to pay the $5,000 when news emerged that an intellectual property infringement lawsuit was being prepared, but the agency chose to reject the offer of payment and proceed with the legal action.

Lawyers representing Pepsi filed a motion to dismiss the copyright infringement lawsuit on the basis that its claims of unfair competition, unjust enrichment and conversion were preempted by the 1976 Copyright Act. The New York federal judge hearing the case accepted some of these argument but refused to dismiss the case. The judge pointed out that there was enough similarity between the agency concept and the finished commercial to warrant legal questions, and he gave the agency 30 days to file an amended complaint.

Intellectual property cases can be difficult and costly to litigate, and attorneys with business and contract law experience may urge their clients to settle such legal battles quickly or avoid them altogether. Attorneys could also encourage their clients to regularly review their intellectual property to ensure that it is properly protected.

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