Imagine going to a Philadelphia Phillies game at Citizens Bank Park and not seeing the most beloved mascot in MLB, and arguably all of sports.
No ATV, no pre-game entertainment, no dugout dance, no hot dog launch, you name it.
While the Phillies are currently amid their fight to earn a postseason spot for the first time since 2011, they are also fighting for the rights to the Phillie Phanatic.
On Friday, The Phillies, L.P. filed a lawsuit against the company that helped develop the Phanatic costume in the 1970s — Harrison/Erickson (H/E), who has recently attempted to reclaim rights with a notice of copyright termination.
The Phillies' lawsuit, writes HollywoodReporter.com, is them seeking a "declaratory judgment that the termination is ineffective and that H/E cannot sue The Phillies for copyright infringement."
The Phanatic lawsuit includes this disturbing photo of the costume with no one in it pic.twitter.com/yyRtIefhLs— Andrew Beaujon (@abeaujon) August 2, 2019
In the late 70s, then-Phillies Executive VP Bill Giles "developed a vision for the club's new mascot — "green, fat, furry, big-nosed, and instantly accessible to children" and would be called “the Phillie Phanatic."
As the "quintessential fanatical Phillies fan," the Phanatic would "engage in audacious slapstick routines, playfully teasing anyone within range of the field or the stands — players, umpires, sportscasters, managers, and fans."
In March 1978, Giles and Phillies executives worked with H/E and provided them "criteria" to develop the Phanatic's costume. H/E needed only two weeks to have it ready, having paid "various 'costumers' $4 an hour to build it, for a total cost of about $2,000."
While the costume was ready to go, someone had to be inside of it to bring the character to life. THe Phillies asked then-marketing intern Dave Raymond help out; he debuted as the Phanatic on the fourth home game of the 1978 season — April 25.
As the lawsuit continues, the Phanatic and Raymond were an "instant hit," adding that by that summer, even H/E acknowledged that "Raymond had 'developed a fun and sensitive character' and Bonnie Erickson observed that the Phanatic had become 'wildly popular.'"
The Phillies continue that H/E was paid "well" for their two weeks of work and approximate $2,000 of expense. Under their license agreements with The Phillies in 1978 and 1979, H/E earned, according to the lawsuit, "over $200,000 by the end of January 1980."
The lawsuit continues that in 1984, "well after the Phanatic had become 'wildly popular,'" H/E terminated the 1979 license agreement and "used its strong bargaining position to negotiate an assignment ('the 1984 Assignment') of all of H/E’s rights for $215,000." The 1984 Assignment expressly states that the transfer of these rights is 'forever.'
Since the Phanatic's debut, the Phillies argue they have "devoted millions of dollars to developing and promoting the Phanatic," adding Raymond has appeared as the Phanatic "thousands of times until his retirement in 1994."
Since then, Tom Burgoyne and others have donned Phanatic costumes thousands of times as well. Raymond, Burgoyne, and other Phillies employees have developed hundreds of slapstick routines at the ballpark, and made thousands of appearances, many at charity events.
Also, over the years, the Phillies say they have developed "dozens of new costumes for the Phanatic and creatively modified his appearance in numerous ways," along with "scores of giveaways and merchandise items representing the Phanatic." In addition, the Phillies say they have "spent millions of dollars promoting the Phanatic via advertising and marketing in traditional, digital, and social media," and claim they are "the owner of numerous trademarks for the name and image of the Phanatic, including numerous incontestable federal registrations in the word mark 'PHANATIC' and in designs of the Phanatic character."
"Some of the many creative modifications of the Phanatic utilized by The Phillies— Walter Hickey (@WaltHickey) August 2, 2019
since 1984 are shown below, with additional examples attached as Exhs. H-K" pic.twitter.com/v7voJjgAhr
H/E's Attempt to Reclaim Rights with Notice of Copyright Termination
In June 2018, the Phillies received a letter from H/E’s attorneys "purporting to give notice of termination of the 1984 Assignment, notwithstanding H/E’s agreement that it would be 'forever.'"
The Phillies say that this letter "falsely claimed that H/E had 'created the copyrighted character' of the Phanatic," and that it also "ignored the Phillies’ role in designing the Phanatic’s costume."
The letter went on to claim that H/E had the right to terminate the 1984 Assignment under Section 203 of the Copyright Act and that, if The Phillies did not negotiate a fifth agreement with H/E, the Club would not be able to “continue to use the Phillie Phanatic” after June 15, 2020.
Since sending that letter, H/E has threatened to obtain an injunction against the Phillies’ use of the Phanatic and to “make the Phanatic a free agent” if the Club does not renegotiate the 1984 Assignment and pay H/E millions of dollars.
The Phillies claim that H/E’s effort to deprive them and its fans of the Phanatic is "legally baseless."
Per termination provisions of copyright law, an author can reclaim rights after 35 years, however the Phillies argue that H/E is falsely claiming it "created the copyrighted character," given H/E is ignoring the Phillies' role in designing the costume.
The Phillies are also arguing, per HollywoodReporter.com:
- H/E has renegotiated the terms of a license assignment over the years, sacrificing its ability to terminate
- H/E fraudulently obtained a registration from the Copyright Office by calling the Phanatic costume an "artistic sculpture."
- They are a "co-author," since they played a material role in designing the distinctive features of the costume's design and the "character at large."
- Even if termination is effective, they have the right to use derivative works.
- The threat to make the Phanatic a "free agent" implicates trademark law.
- H/E may be liable to the team for breach of the duty of good faith and fair dealing.
Therefore, the Phillies are requesting 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.
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."
The firm that designed the Philadelphia Phanatic costume has demanded the Phillies pay millions of dollars to continue using the costume.— Josh Gerben (@JoshGerben) August 2, 2019
The Phillies returned fire today by filing suit in Federal Court claiming full ownership of the costume.#Phillies #Phanatic
My analysis👇 pic.twitter.com/tZIr5dPp0w
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HollywoodReporter.com interestingly noted that this new lawsuit "comes just a day after the Third Circuit Court of Appeals upheld an injunction over a copyrighted banana costume."
Will the Phanatic's long-term status as the Phillies' mascot be affected by this lawsuit? Likely not, but it is surely something to pay attention to moving forward.