The Philadelphia Phillies Sue to Keep Their Mascot From Becoming a Free Agent

The firm that helped design the "Phanatic" attempts to reclaim rights with a notice of copyright termination.
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The Philadelphia Phillies are doing more than just competing for a place in this year's baseball playoffs. On Friday, the club filed suit in New York federal court over an attempt to grab ownership to the "Phanatic," the team's mascot.

According to the complaint, Bill Giles, Phillies' executive vp, created the vision for the mascot in the 1970s — a green, fat, furry, big-nosed character accessible to children. The team says it worked with a company called Harrison/Erickson to develop the costume for the Phanatic. The firm was paid $215,000, according to the complaint. Dave Raymond, an intern in the Phillies' marketing department, is said to have donned a costume and brought the Phanatic to life at an April 25, 1978 home game.

Now 40 years later, after the Phanatic has become incredibly popular, the team says it has received a notice of termination from lawyers for H/E, which was founded by Bonnie Erickson, a designer who once created Miss Piggy and other muppets working with The Jim Henson Company. (She also has apparently done work creating other mascots including those for the Montreal Expos, the Washington Wizards, and Jacksonville Jaguars.)

The termination provisions of copyright law allow an author to reclaim rights after 35 years, but the Phillies say that H/E is falsely claiming it "created the copyrighted character" while "ignor[ing] The Phillies' role in designing the Phanatic's costume."

In its lawsuit seeking a declaratory judgment that the termination is ineffective and that H/E cannot sue The Phillies for copyright infringement, the team's lawyers at Duane Morris offer several legal theories.

First, the team says that since H/E has renegotiated the terms of a license assignment over the years, H/E has sacrificed its ability to terminate. Second, the team asserts that H/E fraudulently obtained a registration from the Copyright Office by calling the Phanatic costume an "artistic sculpture." Third, the team insists it is a co-author since it played a material role in designing the distinctive features of the costume's design, and fourth, designing the character at large. Fifth, the team says even if termination is effective, it has the right to use derivative works. Sixth, the team says that the threat to make the Phanatic a "free agent" implicates trademark law. And seventh, the Phillies says that H/E may be liable to the team for breach of the duty of good faith and fair dealing.

"The Club therefore requests that this Court put an immediate end to H/E’s effort to hold up The Phillies with its threats of legal action and to make the Phanatic a free agent," states the complaint. "By issuing a declaratory judgment in The Phillies’ favor and an injunction against H/E’s threatened actions, the Court will ensure that Phillies fans will not be deprived of their beloved mascot of 41 years and that The Phillies’ investment of creativity, time, effort and money in the Phanatic will not be liquidated by H/E."

Since the lawsuit treads on authorship and intellectual property, the dispute drips with implications for the entertainment industry. The working and contractual relationship between the Phillies and H/E in the creation of the Phanatic will matter and determine who is really the author. If H/E can demonstrate that it really is an author of valid copyrighted material and assigned rights, a court could explore the aspect of the law that states that termination of a grant may be effectuated notwithstanding any agreement to the contrary. And the topic of using trademarks to counter copyright actions has been dealt with, including in the Supreme Court's Dastar opinion.

Plus, since the Phanatic is regularly shown on television, there could also be side ramifications to the fight. In some ways, the dispute calls to mind a lengthy legal war almost a decade ago between Frederick Bouchat, an artist who created a drawing that became the basis for the Baltimore Ravens' logo, and the National Football League. After Bouchat had won the determination that the league had infringed his work, the case went up to an appellate court and had the Motion Picture Association of America weighing in on the topic of fair use of the logo.

This new lawsuit also comes just a day after the Third Circuit Court of Appeals upheld an injunction over a copyrighted banana costume. This time, the birds are pecking.