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Phillie Phanatic Is Back After Lawsuit Settlement Approved

Nov. 17, 2021, 2:22 PM

The Philadelphia Phillies’ Phanatic mascot is coming back after a federal trial court approved a settlement of a copyright dispute with the creators of the team’s famous green creature.

The U.S. District Court for the Southern District of New York Tuesday approved the stipulated consent judgment and dismissal.

Although the financial terms of the settlement are confidential, the creators of the mascot, Bonnie Erickson and Wayde Harrison, said in a statement that the agreement will “ensure the return of the original Phillie Phanatic, the most beloved mascot in all of sports, to Philadelphia where he will reside permanently.”

“We are thrilled to see the original Phanatic back where he should be, in Philadelphia, for the fans of the Phillies,” Erickson and Harrison said.

Phillies Executive Vice President David Buck said in a statement, “We welcome the original Phillie Phanatic back with open arms.”

“We are so proud of the 44-year history of the Phanatic and what the character means to the organization, to the City of Philadelphia and to Phillies fans everywhere. Our goal throughout this process was to come to an amicable solution that guaranteed the Phanatic could continue to entertain future generations of fans,” Buck said.

Copyright Act

Erickson and Harrison sold the costume to the Phillies in 1978 and 1984 agreements, but a provision of the Copyright Act allows creators to terminate copyright grants 35 years later.

The Phillies sued Harrison/Erickson Inc. in 2019, seeking a declaration that it can’t terminate the team’s copyright interest in the mascot.

The team argued that the Copyright Act doesn’t give authors “multiple opportunities to renegotiate grants of copyrights after they have full knowledge of the market value of the works at issue,” and that the 1984 agreement was its one chance to renegotiate.

H/E called the team’s theory “misguided,” and argued that nothing in the Copyright Act says a creator who has “entered multiple post-1978 agreements with a grantee cannot terminate the most recent grant at the appropriate time.”

The Phillies also argued that they contributed to the creation of the Phanatic and should be considered at least a joint author.

H/E said the argument was meritless and an “attempt to deprive H/E of their termination rights.” There was no evidence that the team made copyrightable contributions to the costume, and their agreements acknowledged H/E as its sole creator, they said.

H/E also called a retooled version of the mascot the team unveiled in 2020 a “lawyer-concocted knock off.”

According to the team, H/E also defrauded the Copyright Office by falsely claiming the costume was an “artistic sculpture.” But H/E said its description of the Phanatic was accurate, and called the team’s argument “so meritless and repugnant that it reveals that The Phillies are willing to plead even the most frivolous claims to try to hinder H/E from stopping them from infringing H/E’s reclaimed copyrights.”

A federal magistrate judge in August recommended that the team be allowed to continue using the 2020 version of the mascot without having to pay the creators.

Magistrate Judge Sarah Netburn said the current Phanatic is a derivative work created by the team while it had rights to the design, exempting it from the creator’s termination rights.

Judge Victor Marrero issued the order approving settlement.

The Phillies are represented by Duane Morris LLP. Harrison/Erickson is represented by Mitchell Silberberg & Knupp LLP.

The case is Phillies v. Harrison/Erickson Inc., S.D.N.Y., No. 19-cv-07239, 11/16/21.

To contact the reporter on this story: Peter Hayes in Washington at PHayes@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com