A judge has ordered PepsiCo Inc. and its advertising company to pay $250,000 to the 1950s doo-wop band The Flamingos for using their recording, “I Only Have Eyes For You” in a commercial without permission.
A federal judge in Chicago on Friday upheld an arbitrator’s decision in favor of the two surviving members of The Flamingos, Terry Johnson and Tommy Hunt, and the estates of the 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 the music publishers, the record labels and the artists themselves.
“In our case, they didn’t even ask,” San Francisco entertainment lawyer Steven Ames Brown said Monday.
It’s not the first time Pepsi has neglected to pay a recording artist for a song, Brown said. He claims Pepsi has failed to pay black performers for their songs in advertising campaigns featuring supermodel Cindy Crawford.
“Pepsi routinely pays the Caucasian performers who appear on camera, but refuses to pay the African-American singers whose voices are used in the soundtrack unless they sue,” Brown said.
A spokesman 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.
“That’s completely inaccurate,” said Dave DeCecco of Purchase, N.Y.-based Pepsi. “We have a long history and strong track record of supporting diversity in our advertising.”
Pepsi used the band’s best known 1959 hit in a television commercial that ran nationwide for about six months in 1997, Brown said.
Brown said he successfully sued Pepsi on behalf of Doris Troy, whose 1963 hit, “Just One Look” was used in another popular Crawford commercial, which also featured two young boys. Troy died in 2003.
Brown sued on behalf of The Flamingos in 2003.
Hunt sang the lead vocal in “I Only Have Eyes For You,” which reached No. 11 on Billboard’s Top 40 in 1959 and remained on the charts for 11 weeks, according to the suit.