War Declares War On Pepsi Over Song Used In TV Spot

War’s 1975 hit song “Why Can’t We Be Friends?” is all about hugging it out and making nice, but don’t tell that four of the band’s original members, who have filed a suit against Pepsi, alleging the beverage company didn’t get proper permission to use the tune in their currently running TV spots for Pepsi Max.

The band members, along with the daughter of a late member, filed the lawsuit earlier this week in L.A. They’re asking for $10 million from PepsiCo, saying that — regardless of whomever the soda company got permission to use the song from — it should have also negotiated with the artists.

The suit says none of the plaintiffs had known anything about the song’s use until they saw the commercial airing on TV.

“Pepsi is selling its billion-dollar brand based on their voices and they have to pay for it,” a lawyer for the musicians said.

Here’s Pepsi’s take on things:

Pepsi has a long history of partnering with iconic celebrities and musicians and we value our relationship with the music and entertainment industry.

The plaintiffs have asked for a jury trial and “confiscation of unlawful profits” in amount to be determined.

If you haven’t seen the spot yet (and don’t feel like watching the video below), it features a Pepsi truck driver making pals with a driver for Coca-Cola at a diner. They share a Pepsi Max and bond over the disputed War tune… until the Coke driver realizes he’s being filmed drinking a Pepsi and tosses the other guy out the window.

Funk band War tells PepsiCo they’re not friends [AP]

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  1. Tim says:

    Well, who owns the copyright? If the publisher owns the copyright, and Pepsi negotiated an agreement with them, then Pepsi is legally in the right. If War owns the copyright, and Pepsi didn’t negotiate with them, War is right.

    • Dre' says:

      I can’t see a IP lawyer forgetting that little fact when initially discussing the case.

      • scratchie says:

        This is all pure speculation, but unless Pepsi has really been skimping in their ad budget, I have to think that the IP lawyer for their ad agency would have obtained the necessary permissions. It’s not like this whole “using old songs in TV commercials” is a particularly new phenomenon.

        Also, War has had a particularly fractious history (at one point, I believe there were two different bands touring and some bad feelings about who owned the name “War”) so it wouldn’t be at all surprising if they lost the publishing for their songs years ago (as many bands of their generation did).

        It seems that their lawyers are basically admitting as much:

        “Even if PepsiCo and its agencies got rights from the music’s publishers or anyone else who owns them, attorney Ken Freundlich and his co-counsel Max Sprecher said the company should have negotiated with the artists too.”

        As someone else pointed out, re: Revolution, you have to get permission from the song’s publisher (which they’re basically conceding) and you have to get permission from the owner of the actual recording (which is almost certainly a record company). So while they may feel they have a “moral right” to be compensated (and many may agree), that’s not the law in this country.

    • Loias supports harsher punishments against corporations says:

      Obviously they are complaining because the artists own copyright permission. Same reason Beatles can deny selling on iTunes. They continue to own that right, even if certain publishing permissions are owned elsewhere.

    • tonberryqueen says:

      There are usually multiple parties who have different rights regarding the song, in terms of the actual composition and in terms of the recording. Pepsi may have skipped a step.

      (I’d actually be curious whether obtaining the permission to use something like this is done directly by Pepsi and its lawyers, or by the marketing company–since I’m making the assumption that Pepsi ads are most likely not done in-house.)

  2. apd09 says:

    They have been using that song for years, didn’t it first come out 2 years ago during the superbowl? And I agree with the person above, who ever holds the copy rights to the songs get to decide the use. That is why Paul McCartney was so made with Micheal Jackson buying the rights to the Beatles anthology because he did not want their iconic songs being used to sell products, well that and the fact that they were friends and he told MJ he was going to buy them and MJ then went and out bid him.

  3. nikfish says:

    There are publisher’s rights and there are the rights of the actual recording. For example, Nike’s use of “Revolution”

    http://www.straightdope.com/columns/read/1211/does-michael-jackson-control-the-beatles-music-library

    “Michael Jackson agreed to license the words and music of “Revolution” to Nike for a 1987 shoe commercial, but he had to persuade Capitol Records, owner of the tune’s North American recording rights, to allow use of the actual record.”

    • Loias supports harsher punishments against corporations says:

      A very good answer to the question.

      One must obtain both the rights to a recording, in addition to the rights to the song’s words and music. In many cases, this involves more than one party’s permission.

  4. Loias supports harsher punishments against corporations says:

    I miss the days of “no comment” over the current days of “rambling bullshit that doesn’t give a real answer.”

  5. tbax929 says:

    I have nothing of importance to add to the discussion. I agree with others who have said whoever owns the copyright is the one who gives permission. I can’t imagine Pepsi didn’t secure that prior to using the music.

    FWIW, I much prefer Coke Zero to Pepsi Max. Although right now Pepsi is getting my money because I’m addicted to Pepsi Throwback.

    • Salty Johnson says:

      If you’re a Dr Pepper fan, you should try Heritage DP. It’s even better than Throwback (and I love Pepsi Throwback). I finally found another case of the stuff last night and promptly purchased it. They don’t seem to be making a whole lot of it.

      • tbax929 says:

        Where did you find it? I haven’t liked Dr Pepper since I was a kid, but I’d totally try the Heritage if I could find it. I haven’t seen it in my area.

    • BStu78 says:

      Whoever owns the copyright is needed to give permission but they are not the only person who needs to give permission. Whoever controls the rights to the recording itself also need to sign off. Its possible Pepsi could have used a cover of the song with just the copyright holder’s permission, but not the original recording.

  6. Skankingmike says:

    reason # six hundred and four why our music industry needs to suck it.

    and copy rights need to be shortened,

    95/120 years or life plus 70 years

    This is so Mickey mouse doesn’t go into the domain. yet Patents are gone from 3.5 years to 20 years depending on what it is.

    If it’s good for the goose it should be good for the gander.

    Copy rights as they stand last for an indefinite amount of time, I say this due to the fact that there’s been several laws that have extended this well beyond what would be a fair amount of time. And you know whenever Disney Mickey mouse nears close to it’s expiration there will be another one.

    • iParadox{InLove} says:

      “If it’s good for the goose it should be good for the gander.”

      Madeleine ‘Tis a glorious afternoon. Wouldst thou not agree?
      Peter Griffin Yea, kind shrew.
      Peter Griffin I before thee except after C.
      Madeleine Wouldst thou take a gander underneath my frock?
      Peter Griffin [Stuttering]
      Peter Griffin Whatever floats your boat.
      Peter Griffin *stuffs a goose under Madeleine’s dress*
      Peter Griffin There you go.

    • BStu78 says:

      I’m opposed to copyrights being as long as they are now, too, but this case is precisely the sort of instance which justifies copyright protection. We’re talking here about commercial exploitation of intellectual property. As wrong as perpetual copyright is, artists deserve a reasonable period of exclusive rights to the intellectual property they develop and create. I think in our current society and economy a period longer than 36 years is certainly warranted and has, indeed, been the law for nearly 170 years.

  7. the Persistent Sound of Sensationalism says:

    Huh? I thought people torrenting War’s albums in their living rooms and dorms hurt the band, not corporations using other people’s work for fun and profit? Piracy, not just for teenagers anymore!

    Of course if War doesn’t own the rights to its own music anymore, I digress.

  8. E. Zachary Knight says:

    For anyone who is confused on what it takes to license music in today’s copyright times, someone was kind enough to put together a helpful chart.

    http://www.flickr.com/photos/floorsixtyfour/4889667148/

  9. osiris73 says:

    War… what is it good for?

  10. theycallmeGinger says:

    Maybe they’re upset because it’s such a terrible commercial? They both come off as jerks. “Why can’t we be friends? Because you just sabotaged me, jerk! Now I’m going to kick your ass — like a jerk!”

  11. kc2idf says:

    As much as I sympathize with the artists, isn’t this subject to compulsory licensing?

    • BStu78 says:

      I’m sorry, but you seriously don’t understand what compulsary licenses do. First off, the laws you are thinking apply to the publishing rights of the song. What it means is that if you want to record and commercially release your own version of “Why Can’t We Be Friends”, you can do so. But that’s all you can do. You cannot license that song in anyway without the copyright holder’s consent. ASCAP/BMI agreements mean you can probably get it on the radio and perform it live, but you have no control over that whatsoever. What you also cannot do is license the song for use in a commercial, movie, tv show, video game, etc. without the consent of the copyright holder.

      And none of that remotely involves the rights to the recording which is what is at issue here. It seems likely that Pepsi secured permission from the copyright holder but somehow neglected to collect the appropriate permissions for the original recording. There is no law which allows people to use someone else’s recording for their own commercial product without permission.

  12. MurderGirl says:

    There are plenty of session musicians who make decent cash doing sound-alike versions of songs. How hard would that have been? Or licence Smashmouth’s version. I think I saw one of the band members begging for change.

    • scratchie says:

      They’d still have to license the composition from the publisher if they did a sound-alike version, but it sounds like the publisher > War in any case.

  13. FrugalFreak says:

    Does WAR prefer Coke? Who doesn’t?

  14. psiphiorg says:

    The funny thing about that commercial is how the can switches hands when the camera is recording. When you’re on the Coke guy’s left, the can is in his right hand so that we can see the Pepsi logo. When you’re viewing the Pepsi guy’s camera, the can is in his left hand, so that camera can see the Pepsi logo.

  15. Rachacha says:

    Ya gotta love the music industry. I was working on a video project and I wanted to use a 3o second snippet of a 7 minute song as background music for a video that was going to be shown in a public forum to about 1000 people. I wanted to be 100% legal, so I contacted ASCAP to start the process of obtaining the proper licences and determining what type of fee would be associated with the use. The response I got back was simply “NO”, no explanation of why, or placing some huge fee associated with the clip to discourage use (Sure you can use this 30 second clip for $1,000,000 per person viewing it) simply “NO”. I’ll leave it to ASCAP and the record labels to determine if I actually used that clip which set the stage for my entire video, so rather than trying to help someone who wanted to use a 30 year old song and was willing to pay for the rights to use it, they encourage people to use the content without permission, thus losing out on revenue.

  16. Kishi says:

    In what world is it okay to upload a video of someone to the internet without their permission, Pepsi guy? Geez.

  17. MikeM_inMD says:

    Minor point, but they *both* go out the window in classic bar-room fight clinch.

  18. jaydeflix says:

    You know what I love about this commercial?

    The underlying message of ‘Pepsi drinkers are douchebags.’

  19. teke367 says:

    Years ago, there was a Diet Pepsi commercial, where drivers for both companies sit next to each other in a diner. They start talking, showing each other pictures of their children, and become friends. They each try the other’s soda, the Pepsi guy shakes his head in a nod of approval, then gives back the Diet Coke. The Coke guy shakes his head in a nod of approval, but won’t give back the Pepsi, then cut to a scene with them brawling out through the diner window. This commercial was an update to it.

    I’m surprised I remember that much of the old commercial, but for some reason I thought the old one used that song as well (that could easily be my mind creating a false memory). If that’s the case, is there a time limit on how long a company can use a song for a commercial?