They’re suing the soft drink maker for more than $10 million, saying it did not negotiate with them to use their song “Why Can’t We Be Friends” in a new commercial.
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.
In a lawsuit filed Wednesday in Los Angeles, some of the group’s original members and a relative said they learned the 1975 hit was in the ad for Pepsi MAX only when the commercials launched in July.
PepsiCo said in a statement it believes the lawsuit has no merit.
“Pepsi has a long history of partnering with iconic celebrities and musicians and we value our relationship with the music and entertainment industry,” the company, based in Purchase, N.Y., said in a statement Thursday.
A spokesman for ad agency TBWA/Chiat/Day declined to comment Thursday, referring all questions to PepsiCo.
The ad is part of a campaign pushing the no-calorie Pepsi MAX. The spot with “Why Can’t We Be Friends” is a remake of the company’s “Diner” Super Bowl commercial from 1995, but this time Pepsi MAX is pitted against Coca-Cola’s popular Coke Zero.
In the original, one of the best loved commercials from Super Bowl XXIX, delivery drivers from the rival soft drink makers form a short-lived friendship in a diner over music. Backed by the song “Get Together” from The Youngbloods in 1995, and War’s hit in this year’s ad, the drivers sample each other’s drinks and the Coca-Cola driver prefers the Pepsi product. In both ads, the friendship comes to an abrupt – and funny – end.
But the War members apparently weren’t amused. They have asked for a jury trial and “confiscation of unlawful profits” in amount to be determined.
Original members listed in the lawsuit are Harold Brown, Lee Oskar Levitin, Howard Scott, and Morris Dickerson. Laurian Miller, daughter of Charles Miller, is also a plaintiff.
“Pepsi is selling its billion-dollar brand based on their voices and they have to pay for it,” Freundlich said.