War! What is is good for? Well, it's good for selling soft drinks, if we're talking about the famed band War. Their 1975 smash "Why Can't We Be Friends?" is the prominent soundtrack for a Pepsi Max commercial, as seen on the Emmys Sunday night.
But most of the former members of the group are saying they'd rather get paid than be pals. According to lawyers for the musicians, the ad agency that put together the widely seen commercial never obtained rights to use the recording in the ad. They weren't even aware of the commercial, lawyers say, until they saw it on TV... at which point the shocked ex-War members presumably either did a spit take or, you know, spilled the wine.
Attorney Kenneth Freundlich says he hasn't heard back from either Pepsi or the ad agency, Chiat/Day. "I'm sure they must have cleared the master from the person who owns the master," said Freundlich. "I'm sure they cleared the publishing. But there are three levels of clearance. If you're selling a product with somebody's voice, you have to clear that with the performers, too. When you're talking about a commercial for a product, it's part of the agreement with the Screen Actors Guild that you have to negotiate with the principal performers—the people that sing on the record."
Ironically, the most notorious lawsuits over the use of songs in commercials before have had to do with vocal imitators. Tom Waits successfully sued Frito-Lay when the chips company used a Waits soundalike in an ad, and Bette Midler also prevailed in court when she sued Ford over their use of a Midler ringer in a commercial that used her hit "Do You Want to Dance."
Cases in which an actual original recording is alleged to have been used without permission seem to be rarer. Freundlich says he previously represented Digable Planets in just such a case, in which one of their songs was used in a Target commercial, but it was settled out of court and he says he's not free to discuss the terms.
Reps for the advertising agency have declined to comment on the suit, and Pepsi has only issued a statement saying that the soft drink "has a long history of partnering with iconic celebrities and musicians and we value our relationship with the music and entertainment industry."
Adding some intrigue is the fact that there has been some war within the War camp itself. Since the late '90s, there have been two bands on the road playing vintage War material. One still tours under the name of War, but it includes only one original member, keyboardist and vocalist Lonnie Jordan. The other group is called the Lowrider Band, which includes the other four surviving original members—Harold Brown, Lee Oskar Levitin, Howard Scott, and Morris Dickerson—who also happen to be the parties to the new lawsuit (along with Laurian Miller, daughter of co-founding member Charles Miller). Despite the preponderance of original members, the Lowrider Band members are contractually prohibited from using the name "War."
The split happened in the mid-'90s, according to news accounts. Rights to the band's name are held by Jerry Goldstein, who conceptualized the group and produced most of their recordings—as well as co-writing "Why Can't We Be Friends?" In a dispute, Jordan sided with Goldstein, keeping the rights to perform under the War moniker, and the other musicians left to regroup under a different name. The biography for the Lowrider Band on the band's website mentions many of War's accomplishments—including a nomination for the Rock & Roll Hall of Fame—without ever mentioning the name "War."
Freundlich is also representing the four members of the Lowrider Band in a lawsuit against Goldstein and Jordan, but he says it's strictly over royalties, and has nothing to do with the trademark or rights to the War name.
It's only speculation, with Pepsi and Chiat/Day not talking, but it seems conceivable that they might have thought they'd obtained the rights to the recorded performance of "Why Can't We Be Friends?" from the "other" version of War. But the single is the very rare instance in pop history of a hit single where all the band members take turn singing lead vocals on the verses, as well as singing collectively on the familiar and oft-repeated chorus.
In any case, given the dispute, the soda manufacturer may be wishing about this time that they'd used Todd Rundgren's "Can We Still Be Friends" instead. Or Bette Midler's "Friends"—with the actual Midler and not a soundalike, of course. Or "Thank You for Being a Friend," or "You've Got a Friend in Me," or the Friends theme, or...