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Hollywood once got the most unlikely visitor — a freak of evolution, a creature from the Galapagos Islands, and the only professional baseball mascot to ever star in a feature film (even if his movie did go straight to DVD). Now, 15 years after the release of The Phillie Phanatic Goes Hollywood, the star with an A-list snout may again be shaking up the town. How so? Witness a 91-page report and recommendation from a New York magistrate judge on Tuesday night, the latest development in a two-year-long legal fight between MLB’s Philadelphia Phillies and the design firm Harrison/Erickson over rights to the Phillie Phanatic.
Back in 1978, a Phillies executive named Bill Giles decided the team needed a mascot so he hired Bonnie Erickson, who had previously worked with Jim Henson in developing the Muppets. The Phanatic was the result, and during an April 25, 1978 home game, the character came to life when Dave Raymond, an intern in the team’s marketing department, donned the now famous costume.
Many years later, after the Phanatic became very popular, both sides would dispute the amount of creative direction that the team had given Erickson, but what became important was how Harrison/Erickson obtained a registration from the Copyright Office by calling the Phanatic costume an “artistic sculpture.” Then, attempting to leverage the termination provisions of the Copyright Act, which allows authors to reclaim newer works after 35 years, Harrison/Erickson attempted to grab back rights. In a suit, the team raised all sorts of theories why copyright termination was invalid, and before the termination became effective, the Phillies made some alterations to the Phanatic to the confusion and ire of its fan base.
As the case deals with copyright termination, it hits a hot spot for the motion picture industry. Given the change of law in the late 1970s and the 35-year clock, lots of properties are for the first time becoming subject to termination. Studios are facing the sweeping loss of iconic ’80s film franchise rights (Terminator, Die Hard, Stephen King novels, etc.) and that’s triggering legal controversies like the recent suit over Predator.
Now comes U.S. Magistrate Judge Sarah Netburn’s recommendation in the case.
She wants to let Harrison/Erickson reclaim rights to the original Phanatic and preclude the team from challenging the validity of the copyright.
But that’s not why this decision may change Hollywood’s destiny.
In another part of the report, Netburn looks at the recent alterations that the team made to the mascot and examines something called the Copyright Act’s “Derivative Works Exception,” which basically allows the copyright holder to continue to use amended versions even past termination.
Harrison/Erickson argued that the changes were trivial and not original enough to be considered distinguishable, which leads Netburn into a visual assessment whether the newer Phanatic is a “slavish copy.”
“P2 has pink star-shaped eyelashes, light blue eyebrows, round eyes, oval pupils, a cylindrical snout (that is, one that is the same diameter the whole way across), ‘wing tips’ on its arms, and a blue-tipped ‘duck butt,'” she writes. “P1, for its part, has scalloped-shaped eyelashes, dark blue eyebrows, oval or egg-shaped eyes, a ‘megaphone’- shaped snout, no wing tips, and a dark blue tail that comes to a smaller point.”
The judge comes to a conclusion.
“To be sure, the changes to the structural shape of the Phanatic are no great strokes of brilliance, but as the Supreme Court has already noted, a compilation of minimally creative elements, ‘no matter how crude, humble or obvious,’ can render a work a derivative,” she continues.
Ultimately, she accepts the newer version falls within the Derivative Works Exception, which if now accepted by the District Court, would mean that the Phillies won’t lose their mascot.
And way more.
As noted by Aaron Moss, a Greenberg Glusker partner who has graced The Hollywood Reporter‘s Power Lawyers list multiple times, “[T]he Phillies case could have an impact far beyond the world of sports mascots, potentially serving as a blueprint for motion picture studios looking to ways to retain rights in fictional characters. So long as relatively modest changes are made to a character before copyright termination is effected, that derivative version could be used even after termination. And if the modified version has become the definitive representation of the character in the eyes of the public, this could significantly devalue the original grantor’s termination rights.”
If you don’t think Hollywood won’t be paying attention, think again. This, after all, is the same town where upon the threat of famous superheroes falling into the public domain, one Warner Bros. attorney once noted, “Superman’s power of flight was not introduced until some years after the character first appeared.”
In other words, details of these changes are indeed registered. One might also expect remakes and reboots to occur in the years right before a termination as studios look to hold onto something.
Here’s the full report…
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Samuel L. Jackson