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PHANATIC'S DESIGNER STARTED A FIGHT IT DESPERATELY DOES NOT WANT TO WIN

By Mitch Nathanson, Historical Columnist 

One of the more interesting aspects of the dust-up between the design firm Harrison-Erickson (H/E) and the Phillies over the copyright to the Phillie Phanatic is that H/E really, really, really does not want to win it.  It finds itself in an odd position for a litigant -- if it loses it loses, obviously, but if it wins it loses as well.  And setting aside the legal issues pursuant to the minutiae of copyright law that may or may not be in its favor, it is this cold reality that puts the Phillies in the driver's seat in this dispute.

Assuming that the Phillies dig their heels in and litigate this to the very end, what does H/E stand to win should a court find that it does, in fact, own the copyright to the Phanatic and therefore has the right to make him a "free agent," as its letter to the Phillies has threatened?  As far as I can tell, it wins nothing more than a bag of smelly green fur and a pair of oversized boots which might have a street value of a few thousand dollars at best.  It cannot win the right to call that bag of fur the "Phillie Phanatic" because the Phillies unquestionably own the right to their name.  It cannot win the right to dress the fur in its familiar Phillies cap and jersey because, here again, the Phillies own the right to those as well.  All H/E wins, in the end, is the bag of fur, which becomes anonymous and meaningless absent its connections to ballclub it has traditionally been associated with.  And, oh yeah, the boots.

Of course, H/E might offer up that bag of fur to any of the other 29 other Major League clubs to use as ballpark entertainment much as the Phanatic has been used in Philadelphia since 1978.  But it's hard to see why anyone would pay a premium for this particular bag of fur.  Sports mascots have been around for decades and it's not difficult for any club to order up whatever sort of costume it desires.  There isn't any additional attraction to outfitting this particular costume in, say, a Dodgers uniform and rebranding it the "Dodger Dandy," or whatever their marketing team comes up with.  In the end, there's nothing special about the fur once the physical elements of the costume have been severed from the Phillies.  Once the Phillie Phanatic dies, there is no way to resurrect him as something else without fatally damaging the brand. 

H/E knows this, of course.  It knows that there's nothing special, per se, about the green outfit it designed.  In fact, H/E designed several sports mascots after it created the Phanatic and none of them approached the success achieved by the Phillie Phanatic.  As for why that is, it very likely has to do with the work the Phillies invested in transforming the outfit into a bona fide character, with a personality even perpetually jaded Philadelphians would not only accept but embrace as one of their own. 

H/E also created Youppi! for the Expos and while it has survived (it now trolls Canadians games) it is little more than an orange costume with a sweaty man inside, available for pictures with little children.  It is harmless and anonymous, as is pretty much every mascot that patrols the stands throughout major and minor league baseball (which has no shortage of furry green ones, it should be noted). The Phanatic, on the other hand, is Philadelphia through and through.  This is why fans here have embraced him like they have.  Take the Philadelphia out of the Phanatic and there's nothing left.

So if H/E knows all of this, why has it threatened to, in effect, kill the Phillie Phanatic? 

Money.  No surprise there, but quick money, in the form of an early settlement.  H/E is betting that the fear of losing the rights to the Phanatic will scare the Phillies to the bargaining table.  And this bet is probably a good one.  The Phils have a lot to lose should H/E prevail in the courts and sever the Phanatic from the franchise.  So the Phillies will pay up.

The thing is, though, H/E loses big as well should it win.  Which means both sides are fully incentivized to settle and to settle quickly.  Which is what will ultimately happen.  Given the weakness of its bargaining position, however, H/E is in line for a much smaller settlement than I'm guessing it thinks it's going to get. 

The Phils will undoubtedly blink and offer H/E a bundle of cash to make this go away rather than fighting to the end.  But so will H/E because it can't afford not to blink.  It simply cannot afford to win this case in the courts because to win is to lose.  And lose big, once its legal fees are counted up. 

Long live the Phillie Phanatic. 

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