Flamingos Beat Pepsi

A judge has ordered PepsiCo Inc. and its advertising company to pay $250,000 to the 1950s doo-wop group The Flamingos for using their best known song, “I Only Have Eyes For You,” in a commercial without permission.

A federal judge in Chicago upheld a January 27th arbitrator’s decision in favor of the two surviving members of The Flamingos, Terry Johnson and Tommy Hunt, and the estates of the group’s deceased members.

A collective bargaining agreement with the American Federation of Television and Radio Artists requires an advertiser to get permission and pay fees to music publishers, record labels and artists.

“In our case, they didn’t even ask,” lawyer Steven Ames Brown said.

A representative for Pepsi said the failure to pay The Flamingos directly was an oversight and that Pepsi didn’t realize the song was subject to the collective bargaining agreement.

Pepsi used the 1959 tune in a television commercial that ran nationwide for about six months in 1997, Brown said.

The lawyer sued on The Flamingos’ behalf in 2003.