An update on the on-going legal battle over the Phillie Phanatic
February 23, 2020: The Liberty Line just launched. We were brand new in the blog game. A lot of bizarre things were written. Some factual, some completely ridiculous. A perfect example of ridiculous, would be our first viral blog post titled “Matisse Thybulle: The Sixers Worst Enemy“. As for the factual, I wrote an article about the legal battle between the Philadelphia Phillies and Harrison/Erickson Inc.. In that article, I quickly noted that Harrison/Erickson Inc. is a dumb name and hard to say. Go ahead and say that out loud. After you’re done talking to yourself, it’s fairly easy to believe that they are on the wrong side of the battle against the world’s greatest mascot.
Back in 1978 – Harrison/Erickson Inc. (dumb name) entered an agreement with the Philadelphia Phillies over the use of a character they created (Phanatic) until 1984. At that time the Phillies tossed Harrison/Erickson Inc. $215k for what they claim was the right to use the character “forever”. But apparently, that wasn’t the case. H/E – who probably hate Philly – are now claiming they are owed millions in a contract renegotiation if the Phillies continue to use the Phanatic character as their mascot past June 2020 due to some provision in the copyright laws saying after 35 years the time is up.
“The termination provisions of copyright law allow an author to reclaim rights after 35 years, but the Phillies say that H/E is falsely claiming it ‘created the copyrighted character’ while ‘ignor[ing] The Phillies’ role in designing the Phanatic’s costume.”
The Phillies didn’t back down. Instead of abiding by the lawsuit, they basically said “fuck you” and made some changes to the Phanatic in spite of H/E with hopes of putting an end to the lawsuit by creating their own version of the beloved mascot. The changes, as we know, were not very drastic. A bit furrier, new eyebrows, and a smaller belly was all the Phillies did to the Phanatic before the start of last season.
The Phillies response to the above quote last year was as followed:
“The Club therefore requests 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.”
I’m no lawyer, that’s Ryan Conway. But luckily, the only other sports blog in the city, Crossing Broad, dug up an article from the Hollywood Reporter that provides some straightforward words about where the lawsuit currently stands:
Now comes U.S. Magistrate Judge Sarah Netburn’s recommendation in the case.
She wants to let Harrison/Erickson reclaim rights to the original Phanatic and preclude the team from challenging the validity of the copyright.
In another part of the report, Netburn looks at the recent alterations that the team made to the mascot and examines something called the Copyright Act’s “Derivative Works Exception,” which basically allows the copyright holder to continue to use amended versions even past termination.
Harrison/Erickson argued that the changes were trivial and not original enough to be considered distinguishable, which leads Netburn into a visual assessment whether the newer Phanatic is a “slavish copy.”
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,” she continues.
Ultimately, she accepts the newer version falls within the Derivative Works Exception, which if now accepted by the District Court, would mean that the Phillies won’t lose their mascot.
Basically, get fucked, H/E. “Ultimately, she accepts the newer version falls within the Derivative Works Exception, which if now accepted by the District Court, would mean that the Phillies won’t lose their mascot.” is the key part of the ruling here. The Phanatic is here to stay.
Look, if you created the character that turned into the most recognized mascots of all time. I get it. You got a bum deal and only $215k in return for it. Imagine all the merchandising cash the Phillies have made using the Phillie Phanatic mascot – must be millions of dollars. I’d be pissed too if I wasn’t getting a piece.
Unfortunately, that’s why you can’t be signing your life away on things, which could be problematic for The Liberty Line as I complete roughly 65 pages of documents to certify our LLC and some major partnerships coming up next month. If anyone really wants the site, just ask and I’ll give it to you. Don’t trick me with legal jargon.