Pitch Perfect? Or Way Off Key?
Agency Client Pitches: Legal Considerations
The pitch process can be a swamp of legal ambiguity. Pitches are based on ideas, and it’s hard to protect ideas. In a real-life example, Betty, Inc. sued PepsiCo in the Southern District of New York, for copyright infringement claiming that Pepsi took ideas from a concept pitched by Betty in 2014 (but rejected). According to Betty, the idea was then used in a 2016 Super Bowl halftime commercial.
Background:
In 2014, Pepsi’s ad and marketing subsidiary hired Betty for a three-year creative agency services contract on a non-exclusive basis. Under the agreement, Pepsi retained the discretion to decide whether or not to do business with Betty. In 2015, Pepsi invited several agencies, including Betty, to pitch ideas for a 2016 Super Bowl half time show commercial. Betty presented a concept called “All Kinds/ Living Jukebox” which was set in a warehouse and as the camera moved around the warehouse, the music, the “fashion” and the “vibe” changed. In addition to Betty’s concept, another agency presented a concept called the “Joy of Dance” in which the dancer’s wardrobe and style of dance changed as the dancer moved through rooms based on a “decades” theme. Pepsi launched its commercial in 2016 and after the launch, Betty copyrighted its “All Kinds/Living Jukebox” concept, and subsequently filed suit against Pepsi for copyright infringement and breach of contract.
To prove copyright infringement, the plaintiff must show that the defendant had access to the “protectable” item and that the resulting work is substantially similar to the allegedly infringed work. In this case there’s no doubt that Pepsi had access to Betty’s work. The court then analyzed whether the resulting commercial was in fact, substantially similar to the concept presented by Betty by examining all the elements of the two works including setting, feel, pacing, colors, and characters.
The court found in this instance that there were many dissimilarities in the works: 1) Betty’s was darker in its presentation (both music and imagery) where the Pepsi commercial was bright, upbeat and lighter in feel and color scheme; 2) the settings were substantially different: dark warehouse vs. bright rooms; 3) the themes of different musical genres and different eras were different (Betty’s “proposed thematic device [] of changing wardrobe and dance moves to reflect genre [was] not protected.”) ; and 4) characters were substantially different and the mechanism used for scene transition was unprotectable as an idea and not subject to copyright protection.
On the breach of contract claim the court found that (in accordance with New York law) there were several holes in Betty’s assertion of the existence of an agreement: there was no intention to be bound by an agreement in 2014 and that there were several terms in the 2014 agreement that were to be negotiated only if Pepsi chose to move forward, among other successful arguments by Pepsi.
The District Court dismissed Betty’s claims and granted summary judgment to Pepsi.
Why This Matters:
Even with a well written agreement (the importance of which cannot be overstated), it’s essential to have a basic understanding of copyright law as it relates to the agency client arrangement, especially the pitch process. Let your lawyer know what pitches you’re working on and whether there are any existing agreements between you and a client; or on the marketer/client side, determine whether there are agreements or other parameters between you and your pitching agencies.