Pepsi Can’t Dodge Copyright Claims Over Super Bowl Ad

A federal judge refused to dismiss a copyright lawsuit over Pepsi’s time-traveling 2016 Super Bowl ad, allowing an advertising firm’s case to proceed to discovery.

Betty Inc. alleges Pepsi’s 2016 Super Bowl commercial titled “All Kinds/Living Jukebox” lifted its concept for a “human jukebox” scenario, in which music genres and fashions change “with the ability to transport the viewer to imagine a scene consistent with a created joyous feeling.”

Betty claimed Pepsi stiffed it on the agreed-upon $5,000 compensation for the concept.

According to court records, after Pepsi found about that Betty was planning to sue, it made a $5,000 payment along with a purchase order for the “Betty Super Bowl Ad Creative Concept.” Betty rejected the payment.

Pepsi filed a motion to dismiss in November 2016, attacking state-law claims of breach of contract, unjust enrichment, conversio, and unfair competition on the ground that they are preempted by the trademark registration Act because the claims relate exclusively to Pepsi’s alleged reproduction and distribution of Betty’s copyrighted material.

In a 24-page opinion, Judge Karas dismissed the advertising agency’s claims for unjust enrichment, conversion, and unfair competition, finding that Betty’s “only argument is that its claims are not preempted because it has a property interest in the ideas giving rise to the ‘All Kinds/Living Jukebox’ concept,” which Karas said has been expressly foreclosed by the Second Circuit.

Karas also dismissed the breach of contract count, finding Betty had failed to state a claim.

The judge thought the Super Bowl commercial’s ‘total concept and overall feel’ is substantially similar to plaintiff’s copyright infringement work, and there are sufficient similarities between the works such that resolution of this issue at the motion to dismiss stage is inappropriate.

The judge gave Betty 30 days to file an amended complaint remedying deficiencies regarding its failure to state a claim for breach of contract.