He’s Back…

If you watched the Phillies at all this season, you may have noticed the best mascot in sports, the Phillie Phanatic, looked a bit different. His antics, however, were the same. The cosmetic adjustments weren’t part of the normal evolution mascots generally undergo, rather they were the direct result of a lawsuit between the Phillies organization and the mascot’s creators. 

A Brief History of How Our Beloved Mascot Became To Be

In 1971, the Philadelphia Phillies went 67-95. They were the third-worst team in all of baseball. They had one of the worst fan turnouts in the league. They needed to do something new. But what? 

Team President, Bill Giles, had an idea—a new mascot. The previous mascots, Phil and Phillis, were just not cutting it. In an SI documentary, Phillies great Mike Schmidt, said they were the “mascots at that time, I guess.” Giles took the rejuvenation of the team’s branding seriously. He even called the legendary puppeteer Jim Henson to talk things over. That’s when Henson recommended the creators of Big Bird and Ms. Piggy: Bonnie Erickson and Wayde Harrison. And seven short years later, the Phanatic was born. 

The Copyright Saga

After seeing the original design, Giles didn’t think the Phanatic was going to work out and win over the hearts of one of the harshest cities in America. (Does this remind anyone else of the public’s reaction to Gritty?) He wanted to know how much it would cost him. Erickson and Harrison gave him two options: $3,900 and they kept the copyright or $5,200 and the Phillies had the copyright. (In 2021 dollars, it would have been close to $26,000 vs. $35,500…still quite the bargain!) Giles, unsure of the public’s reaction went with the cheaper option—Erikson and Harrison could keep the copyright. 

In 1984, after the Phanatic’s wild success, the Phillies organization paid Erikson and Harrison $215,000 (215, representing the Philadelphia area code) for the rights to use the Phanatic as the team’s mascot “forever.” Apparently, as part of the deal, the parties would be able to renegotiate the deal based on the popularity of the green monster. Further complicating things, is the Copyright Act, which allows creators of copyrighted works to renegotiate or terminate an agreement 35 years after the original agreement date. 

Fast-forward to 2018 when Erikson and Harrison sent the Phillies a notice of termination—if a new deal wasn’t reached by June 15, 2019, the Phanatic would be a “free agent” all because they held the copyright. In June 2019, the Phillies responded by filing their own lawsuit alleging that the mascot owned its fame and that the 1984 agreement transferred the rights to the club “forever.” 

What a mess—it all could have been avoided had Bill Giles just spent the extra $1,300 and gotten the copyright. 

Let’s not forget one thing: the Phillies have great lawyers. To avoid losing the pending lawsuit and the use of the Phanatic, the Phillies made several changes to the famous creature from the Galapagos, including a slimmer silhouette, lighter green fur, scales under the arms which looked as if they were creating wings, and a rounder snout. Here he is before and after. However, these changes did not stop the lawsuit from proceeding.

In August 2021, U.S. Magistrate Judge Sarah Netburn of the Southern District of New York, ruled that: (1) Erikson and Harrison held the copyright to the Phanatic; but (2) the Phillies made enough changes in 2020 to “warrant its definition as a derivative work and under the ownership of the baseball team.” Citing a 1991 Supreme Court Case, Feist Publications Inc. v. Rural Telephone Service Company Inc., 499 U.S. 340 (1991), Netburn concluded that: “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.” With that, the Phillies *new* Phanatic appeared to be here to stay. 

The Settlement 

But it wasn’t. Earlier this month, partially due to the Magistrate Judge’s “split decision,” the two parties settled. The settlement, which was for an undisclosed amount, allows for the Phillies to use the original mascot design. In a press release, Erikson and Harrison stated: “Ever since we created the Phanatic in 1978, Philadelphia has been his home. We are thrilled to see the original Phanatic back where he should be, in Philadelphia, for the fans of the Phillies.” And it appears the Phillies feel the same way. 

In good fun, the Phanatic, through his personal attorney, Iggy T.L. Iguana of the Galapagos Associates Management Enterprises, Inc. (or G.A.M.E. for short) “released a statement” which simply says: “I’m back.” 

Thus, the copyright battle appears to be over—the second-best news the Phillies organization received this month—say it with me: National League MVP Bryce Harper. MV3

Photo Via: Yong Kim, Staff Photographer, The Philadelphia Inquirer

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3L & Editor-in-Chief of the Buffalo Environmental Law Journal. Sad fan of the Philadelphia sports teams and Tottenham Hotspur. I enjoy writing and learning about the intersection of sports and business law, with a focus on the NHL. H2P!

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