Funk band War tells PepsiCo they're not friends

This undated image provided by PepsiCo. on Monday, July 19, 2010, shows Art LaFleur, left, who plays a Pepsi truck driver in the company's 1995 advertisement makes a cameo appearance in Pepsi MAX, Diner 2pointZero. PepsiCo Inc. will premiere a revamped version of its "Diner" Super Bowl commercial on Monday night, July 19, 2010, pitting its Pepsi MAX against Coca-Cola's popular Coke Zero. (AP Photo/PepsiCo Inc.)

September 2, 2010 7:38:11 PM PDT
Members of the original funk band War say they can't be friends with PepsiCo.

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 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, the drivers in the original ad 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," said Ken Freundlich, another attorney representing the band members.