The companies agree that Betty did present in November 2015, an “All Kinds/Living Jukebox” ad concept. Pepsi filings however say that Betty presented “generic and unprotectable elements, such as unspecified wardrobe or set changes, that are distinctly different from the final advertisement it ended up producing.” Adding, “as a matter of law, Betty’s complaint is insufficient to support a claim of copyright infringement, and no amount of discovery could remedy the glaring lack of substantial similarity between the two works.”
Betty’s original complaint described their Living Jukebox proposal as “the human representation of what a jukebox could be, with seamless music changes and genre variety with the ability to transport the viewer to imagine a scene consistent with a created joyous feeling.”
Betty’s suit said that Pepsi told them they were going with a different approach, but after proposing the idea they chose The Marketing Arm, headquartered in Dallas to produce the concept. Betty’s attorney Mark Gregory of Martin LLP of Stamford, said the company went on to “produce a substantially similar ad, of a character dancing along to genre music through 50 years of Pepsi history, from the 1960s to present day.”
Pepsi contends the differences between the two ideas are substantial and that Betty’s proposal “included taking the viewer on a walk through a warehouse setting while various renditions of the “Joy of Pepsi” jingle are performed in different music genres, ending with a scene behind the warehouse of a doo-wop group singing around a trash can fire.”
Adding, the produced Super Bowl ad “features dancing, not singing, to different songs other than the Pepsi jingle, and takes place inside a “Pepsi Globe.”
Betty said it had an “express understanding” it would be paid $5,000 for its work, Pepsi did forward a check once they claimed the infringement. Betty’s attorney said the agency didn’t cash it and filed the suit in June 2016.