Has The Phillie Phanatic Been Saved From Free Agency?

• Published date: 16 August 2021
• Subject Matter: Intellectual Property, Copyright
• Law Firm: Frankfurt Kurnit Klein & Selz
• Author: Ms Nicole Bergstrom

For those of you who have not had the pleasure of receiving a popcorn shower or cannon-delivered hot dog from him, the Phillie Phanatic is the official mascot of the Philadelphia Phillies baseball team. His bio on the Phillies's website lists him at 6 foot 6 inches, 300 pounds (mostly fat) and hailing from the Galapagos Islands. Rather unsurprisingly, his favorite foods are cheesesteaks, Soft pretzels, hoagies, scrapple and Tastykakes, his favorite movie is "Rocky" and his favorite songs are "Motown Philly" and "Take Me Out to the Ballgame". In 2011, Forbes named the Phanatic America's Favorite Sports Mascot, edging out the San Diego Chicken, and he maintains the distinction of being the only professional mascot to star in a feature film (which went straight to DVD).

But, a recent copyright lawsuit has attempted to keep the Phanatic out of free agency. For context, we have to go back to 1978, when Phillies's then-Executive Vice President, Bill Giles, decided to develop a new mascot for the team. He hired Bonnie Erickson, who had previously worked with Jim Henson in designing Muppets, and Wade Harrison, Erickson's husband and co-founder of Harrison/Erickson, their creative design firm. The parties entered into an agreement for "the design and construction of a character to be known as The Phillie Fanatic for use as an entertainer during home baseball games" in exchange for $3,900. Under the agreement, "[t]he character will be copywritten by Harrison/Erickson who reserve all rights of its use for purposes other than expressly specified in writing," although all sides agreed that the Phanatic, as he later became known (you really can't fight good alliteration), would appear at games and elsewhere on behalf of the team.

The parties dispute how much input Giles or the team provided, but the result was a mascot who made his debut in April of 1978 at a home game. In July of that year, the parties entered into a further agreement by which the Phillies were granted exclusive rights throughout the world in the Phanatic, including the right to make reproductions. Harrison/Erickson subsequently secured a copyright registration purportedly for an "artistic sculpture" called the "Phillie Phanatic". Litigation quickly followed, in which the Phillies did not claim any authorship interest in the Phanatic and did not challenge the validity of the Phanatic's copyright registration. That case settled in 1979 with the Phillies acknowledging Harrison/Erickson's copyright...