December 2nd, 2021

He’s Back! How the Phanatic Conquered the Legal System

Michael Jordan. Brett Favre. The Phillie Phanatic. What do they all have in common? They are all legendary sports figures whose careers in sports were at one point uncertain but defied the odds to come back like they never left.

            If you read my most recent blog, you know that the Phillie Phanatic has been the subject of intellectual property litigation in the Southern District of New York. Specifically, the Phanatic’s original creators, Harrison/Erickson, Inc., sued the Phillies in federal court claiming a right to reclaim their interest in the Phanatic. In response, the Phillies counter-sued Harrison/Erickson claiming it violated the Federal Copyright Act accompanied with a few related assertions.

            As the lawsuit continued for over two years, the Phillies were permitted to use the Phanatic, but with modifications that satisfied the court and copyright law. Some of these modifications included a blue tail, star eyelashes, blue socks, and an overall lighter green color. Phillies fans, including myself, certainly were not happy with the changes that the Phanatic was forced to make. The most irritating aspect, however, was the possibility that the Galapagos Island native would never return to his original look. Luckily, that possibility has been thrown aside. That’s right. He’s back.

            On October 8, 2021, the Southern District of New York released a court order stating that a settlement was reached between the Phillies and Harrison/Erickson. The order provided the parties thirty days to finalize the details of a settlement, which they were able to do. The final settlement states that the Phillies have the option to use the design of the original 1978 Phanatic, or the altered design they created before the 2020 MLB season. In return, the Phillies paid Harrison/Erickson an undisclosed amount of money in the settlement and the litigation finally came to an end. After selecting the option of using the original Phanatic design, the Phillies announced on November 16, 2021, that the beloved Phanatic is officially back. You can bet the house the fan-base was rejoicing.

            If there is a lesson to be learned here, it is the importance of retaining counsel to assert your rights for you. After the Phillies learned of Harrison/Erickson’s desire to reclaim their rights to the Phanatic, the Phillies could have passively allowed an arbitrator or judge to decide whether the original creators would be permitted to do so. Instead, the Phillies retained counsel and asserted their rights to the original Phanatic and made several claims against Harrison/Erickson as well. The team’s strategy surely put pressure on Harrison/Erickson to settle or risk gaining nothing from the lawsuit at trial, which most likely led to this settlement. If not for the team’s aggressive legal tactics, the Phanatic might not be wearing red pinstripes anymore. Whether you have a claim to assert or need guidance in a venture you are pursuing, it is always smart to have good lawyers helping you along the way.

            Opening Day 2022 will feature the Phanatic back in red and white. Zack Wheeler and Bryce Harper will be back too. Let’s hope the Phillies front office is as successful this offseason in bringing top free agents to Philadelphia as the team’s litigation counsel was in resolving this mascot dispute. If that’s the case, we will have a fun season to look forward to.

Phillies welcome back original Phanatic: https://www.mlb.com/news/phillies-settle-phanatic-lawsuit

Phillies settle Phanatic lawsuit with mascot creators: https://www.inquirer.com/phillies/phillies-phanatic-mascot-settlement-lawsuit-20211008.html

Phillies settle lawsuit with Phillie Phanatic creators to allow use of original mascot design: https://www.cbssports.com/mlb/news/phillies-settle-lawsuit-with-phillie-phanatic-creators-to-allow-use-of-original-mascot-design/


Michael Horvath serves on the firms Business Services Team helping business owners navigate local municipal and real estate laws.