On May 1, 2019, ad agency, Betty Inc. (“Betty”), which sued Pepsi for stealing its idea for a Super Bowl commercial starring actress Janelle Monae, urged a New York federal court to reject Pepsi’s Motion For Summary Judgment saying the distinct elements of Betty’s pitch ended up being used as Pepsi’s “The Joy of Dance” commercial.

Betty argued that despite Pepsi’s assertion that The Marketing Arm (“TMA”), another ad company, came up with the pitch that would become “The Joy of Dance,” Pepsi took elements of Betty’s “All Kinds/Living Jukebox” pitch to “refine” TMA’s pitch, resulting in the final commercial.

According to Betty’s brief, emails from Pepsi call into question Pepsi’s claims that TMA’s pitch was chosen on its own merits. Specifically, email exchanges between Pepsi and TMA dated after TMA presented its pitch include a suggestion from Pepsi to TMA to add elements that Pepsi had previously argued were in the pitch to start, and which Betty contends originated from its “All Kinds/Living Jukebox” proposal.

According to Pepsi, “the only similar elements between the final commercial and Betty Inc.’s pitch was the ‘basic idea’ of having a musical performer move through the commercial with scenery changes, and that these ideas or scenes are unprotectable because they naturally flow from the basic concept. Anything left after removing those elements from the case simply don’t show up in Pepsi’s ad.”

Betty responded that the focus should not be on the individual elements but on the overall feel and theme of the work since Betty’s “pitch and the final product are substantially similar, while TMA’s original pitch bears little resemblance to the final commercial.”

Elements such as costume changes, the use of doors as set changes and opening on a jukebox, when taken together with the overall tone of the commercial, show a substantial similarity between the final ad and Betty’s pitch and cannot support a motion for summary judgment, Betty argued.

Betty further argued, “What is relevant is not that music, dance and a main performer with wardrobe changes have been used before, but the way Betty selected, coordinated and arranged such elements…There is nothing standard about the elements of a living human manifestation of a jukebox and certainly nothing so standard about it that renders the manner or way Betty expressed it unworthy of protection.”

Betty also raised the fact that Pepsi stole ideas from another ad agency years before to produce an ad for Lipton Ice Tea, and that after Betty complained about “The Joy of Dance” ad, Pepsi executives forged an invoice in an attempt to fraudulently purchase the rights to Betty’s pitch ideas.

Finally, Betty urged the court to reject Pepsi’s argument that there was “no standing agreement” between Pepsi and Betty since Pepsi would consistently pay the ad agency before using its pitches to produce ads. “By using the pitch elements without paying Betty Inc. or giving credit, Pepsi has deprived it not only of the fees for the commercial but further work that a Super Bowl ad credit would have brought to the company.”

The case is Betty Inc. v. PepsiCo Inc., case number 7:16-cv-04215, in the U.S. District Court for the Southern District of New York.

Pepsi is represented by Scott R. Samay, Natalie S. Richer and Elizabeth Lafferty of Lerner David Littenberg Krumholz & Mentlik LLP and Michael S. Elkin and Emily Ellis of Winston & Strawn LLP.

Betty is represented by Mark Scott Gregory of Martin LLP.

* Lowe & Associates (“The Firm”) is a boutique entertainment and business litigation firm located in Beverly Hills, California. The Firm has extensive experience handling cases involving business, entertainment law and intellectual property, having provided top quality legal services to its clients since 1991. The Firm is recognized in multiple publications for its many achievements and high ethical standards, including Martindale-Hubbell and Super Lawyers.

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