Phillie Phanatic Phrenzy
The Phillie Phanatic is one of the most famous and beloved mascots in professional sports.[1] However, the Philadelphia Phillies are in danger of losing their mascot to “free agency.”[2]
On August 2, the club filed a copyright lawsuit in the Southern District of New York, suing a group of defendants who claim to be the true creators of the Phanatic.[3] The lawsuit claims that this group is demanding an exorbitant amount of money from the club and, if the Phillies don’t comply, they will make the Phanatic a “free agent,” meaning that other organizations can buy the rights to make the Phanatic their mascot.[4] The defendants are Bonnie Erickson, her husband Wayne Harrison, and their company, Harrison/Erickson.[5] Erickson is most known for her work as a puppet designer, working with Jim Henson of “The Muppet Show” prior to her work with the Phillies.[6] In this lawsuit, the Phillies are seeking, among other things, a court order that would give them absolute use of the Phanatic, both as their mascot and as an icon on Phanatic-inspired products.[7]
Erickson and Harrison have since filed a counterclaim to the Phillies’ allegations.[8] Their claim asserts that the Phillies had no role in the creation of the mascot and asks the judge to grant them full copyright rights as of June 15, 2020: the date when a 1984 agreement between them and the Phillies expires.[9] The counterclaim alleges that the Phillies are trying to “bully” them into accepting less money from the club for the renewal of the Phanatic’s copyright.[10] Despite the reputation of the Phanatic today, no one involved in its creation foresaw this level of fame.[11]
In 1978, then part-owner Bill Giles knew that he had to get creative in order to fill the stadium, since the Phillies were a losing ball club at the time.[12] He then approached Harrison and Erickson to help create what would become the Phanatic.[13] Even after its creation, Giles was still skeptical.[14] Harrison and Erickson initially offered Giles the options to buy the costume for $3,900 (wherein the former would keep the copyright) or to buy the costume for $5,200 (wherein the Phillies could own the copyright).[15] Giles, who did not believe the Phanatic “would be any good,” decided to save and let Harrison and Erickson keep the copyright.[16] However, according to the Phillies’ complaint, they had paid Harrison and Erickson over $200,000 for use of the Phanatic and its image by 1980.[17] Then, in 1984, after it was clear the Phanatic had become a hit, the Phillies terminated their original licensing agreement and renegotiated a deal for $215,000.[18] The Phillies claim that this deal gave them rights to the mascot forever.[19] Federal law, however, holds that artists can renegotiate those rights after 35 years—hence the significance of the approaching June 15, 2020 date.[20]
The Phillies’ main argument is that Giles played an integral role in the creation of the Phanatic as a character.[21] Having the initial idea for the mascot and being the individual who determined who would suit up as the Phanatic, the Phillies allege that Harrison and Erickson were solely responsible for turning Giles’s idea into a physical creation.[22] Meanwhile, Harrison and Erickson claim that it is irrefutable that for four decades the Phillies knew and acknowledged they were the true creators of the Phanatic, as evidenced by the deals above.[23]
Evidently, both sides have elements of truth to their argument.[24] The Phillies cannot afford to lose the Phanatic, as it has become as much a part of their brand as the baseball that is played in Citizens Bank Park. The two sides have already commenced settlement negotiations.[25] Though trial is always a possibility, the parties have negotiated settlements before, and it is likely they may achieve another one here.[26] A settlement agreement in this instance would most likely boil down to how much the Phillies are willing to spend to keep their famed mascot from hitting the free agent market. The impending expiration of the 1984 agreement is an intriguing wrinkle in this latest dispute between the parties, and it will be an interesting situation to monitor as settlement negotiations develop.
Footnotes
