Judge believes ventriloquist's lawsuit against Pepsi wasn't 'the right one' ANNE ARUNDEL COUNTY

January 21, 1993|By Norris P. West | Norris P. West,Staff Writer

A federal judge has dismissed a lawsuit by an Annapolis ventriloquist who claimed he gave Pepsi "the right one." U.S. District Judge Frederic N. Smalkin ruled in a summary judgment last month that the ventriloquist, Arthur Takeall, did not present proof that Pepsico Inc. had known of his version of that phrase before using it to launch a successful advertising campaign in 1991.

Mr. Takeall, who performs with his dummy, Scooter, claimed in a $130 million lawsuit against the soft drink giant last March that Pepsico swiped the line he has used in his act for years.

"The courts knew what we knew all along," said Andrew Giangola, a Pepsico spokesman. "The campaign was created by no dummy."

Mr. Giangola said that although the company had discussions about settling the case even before the lawsuit was filed, Pepsico had never offered Mr. Takeall any money.

Mr. Takeall, 46, a one-time radio disc jockey, said he has used the phrase with Scooter since 1983. He has performed across the nation. The ventriloquist said he offered to sell the copyrighted "right one" phrase to Pepsico subsidiaries in June 1989. He has performed with Scooter across the nation.

The soft-drink maker contended that it did not violate the ventriloquist's rights even if he came up with the "right one" expression before it did. Pepsico denied that it had any knowledge of Mr. Takeall's 1989 offer or his use of the phrase before launching its advertising campaign.

Pepsico began the campaign featuring Ray Charles during Super Bowl XXV in 1991. Mr. Charles sings, "You've got the right one, baby. Uh-huh" in the commercials. Newer versions of the ads using the phrase are still being aired.

In a Dec. 23 ruling, Judge Smalkin said the case should not go to trial because Mr. Takeall's filings did not prove that the company had ever received his proposal.

The judge also noted that Pepsico had submitted testimony by the two composers of the jingle, who said they had never heard of Mr. Takeall or his ventriloquism act. He said Mr. Takeall's work was not widely enough disseminated to make a case that Pepsico would have known about it.

Judge Smalkin said the evidence needed to show that the "defendant stole his work is simply missing."

Mr. Takeall said yesterday that he will either ask Judge Smalkin to reconsider the case or appeal the decision. He said he has hired a new lawyer in an effort to support his claim.

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