My friend Tom writes:

Pepsi is running an ad with War’s “Why can’t we be friends?” War is suing them for 10M saying Pepsi didn’t secure the rights.  If you were going to steal a song, why would you steal from a group called War?

Excellent point Tom, and love to Andi.  Although some articles have described the lawsuit as a copyright suit, the complaint doesn’t mention copyright but sounds in breach of contract, right of publicity and trademark.

When using an ‘original’ recording for a commercial, one needs authorization from the owner of the copyright of the composition and of the recording.  It would seem to be the case that the plaintiffs here are neither.  So Pepsi may well have ‘cleared the rights’ to the song, we don’t know.

However, what’s the breach of contract action about? Plaintiffs allege that collective bargaining agreements with performing artists unions SAG and AFTRA obligate the filmmaker to contract with the recording artists, apart from copyright considerations.  Without speaking directly to Pepsi’s situation, if a filmmaker uses a ‘sound-alike’ recording, then that would appear to remove the need to (1) obtain authorization from the owner of the copyright in the ‘original’ performance; and (2) seem to resolve the SAF/AFTRA issue.  Of course, if Pepsi used the original, then there may be SAG/AFTRA issue.  This isn’t my specialty – if it’s yours, please leave a comment.

As to rights of publicity, it strikes me as odd for a group of people to assert a right of publicity.  Don’t you have to be a person to have a persona?  Trademark law would seem to be the proper avenue for groups to bring false endorsement claims.

There have been right of publicity/trademark cases arguing that a ‘soundalike’ recording implies endorsement by the original artist.  There is similarity here to the Romantics v Activision case, which is thoroughly discussed, along with the Tom Waits and Bette Midler cases, by Prof. Tushnet here.