A federal District Court in Chicago ordered Pepsico and ad agency BBDO Worldwide on Jan. 27 to pay $250,000 to members of 1950s group the Flamingos. The order confirms an arbitration award over a 1997
A federal District Court in Chicago ordered Pepsico and ad agency BBDO Worldwide on Jan. 27 to pay $250,000 to members of 1950s group the Flamingos. The order confirms an arbitration award over a 1997 Super Bowl and other commercials featuring Cindy Crawford and including the group's recording of "I Only Have Eyes for You."
Terry Johnson and Charles "Tommy" Hunt -- the only surviving members of the group -- and the heirs of Jacob Carey and Nate Nelson sued the companies in 2003 for violating the terms of the AFTRA "commercials" contract. At the time the group recorded the song in 1958 for Gone Recording, that production company had an affiliation agreement with the union.
The contract provisions restricted certain companies from using a sound recording, made under the jurisdiction of AFTRA, in a commercial "without separately bargaining with the principal performer and reaching an agreement regarding such use prior to" using the soundtrack. Neither Pepsico nor BBDO obtained the performers' consent when they licensed rights in the recording.
Steven A. Brown in San Francisco, the group's attorney, tells Billboard.biz that he elected to file the suit in federal court rather than arbitrate the matter in order to pursue damages in excess of the rate provided in the contract. He also chose the federal court in Illinois – where the group lived and recorded in the 1950s -- because the statute of limitations is 10 years in that state, much longer than other states' statutes. The claims may have been barred in other states.
The court in 2004 ordered the case to arbitration based on the contract terms. The arbitrator then interpreted the AFTRA agreement to permit an award of damages in excess of the limited amount specified in the union contract. Last November the arbitrator awarded the members $250,000.
Brown says that the group has the option to appeal the order if they want to pursue a jury trial and seek more damages. Attorneys for Pepsico and BBDO could not be immediately reached for comment.