November 3rd, 2021

The Phanatic’s Day in Court: Analyzing the Intellectual Property Issues Involved

            If you are a resident of the Lehigh Valley, the Greater Philadelphia area, or just a baseball fan in general, then you know all about who the Philly Phanatic is. You know he is that big green furry monster that hangs out in Ashburn Alley or on top of the dugout at Citizens Bank Park during the Phillies’ season. The Phanatic is perhaps the most popular immigrant from the Galapagos Island in America; he tends to steal the show at home games, but that also may be because the Phillies don’t put on much of a show, to begin with. Now, through no fault of his own, the Galapagos Island native found himself in some hot water: a copyright infringement lawsuit. That’s right, the Phanatic was the subject of a recent United States District Court decision out of the Southern District of New York. Let’s review what happened:

            The Phanatic has been a part of the Phillies organization since 1978 when Bill Giles (a former executive with the team) created the mascot. Giles worked with Harrison/Erickson, Inc., a design and merchandising firm specializing in character design, to develop the mascot’s costume before it was first brought to light in the late 1970s. In the 1980s, as the Phillies began using the Phanatic’s image and likeness for merchandise, the team paid Harrison/Erickson $215,000 to assign all of their rights in the Phanatic to the Phillies forever. Harrison/Erickson thereby sold, transferred, and assigned all rights in the mascot to the Phillies for good!

            Fast forward over thirty years later, the Phillies received a June 1, 2018 letter from Harrison/Erickson stating that it is the true creator of the Phanatic and can terminate its rights at any time following July of 2020. The Phillies then stepped up to the plate: they retained counsel, filed suit against Harrison/Erickson in federal court, and brought several claims against the company. These claims included: 1) a violation of the Federal Copyright Act; 2) unjust enrichment in negotiating a new contract with Harrison/Erickson; and 3) a derivative works exception under copyright law to claim protection of Phanatic-inspired products sold by the team. Most importantly, however, the Phillies sought an order to allow them to keep using the Philly Phanatic as their team mascot.

            Luckily, the team was successful. On August 10, 2021, the Honorable Victor Marrero issued a report from United States Magistrate Judge Sarah Netburn allowing the Phillies to continue using the Phanatic, but only with its redesigns as of July 2020. In the midst of the legal dispute, the Phillies decided to tweak the image of the Phanatic to satisfy Harrison/Erickson and comply with federal copyright law. Although the tweaks were minor (a blue tail, different shoes, eyelashes, etc.) and the Phanatic was easily recognizable, it appears that satisfied the court. Regarding the satisfaction of the changes to federal copyright law, Judge Netburn noted:

            “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,” and is thus protected.

            Alas, it appears the redesigned Philly Phanatic will still be roaming the aisles of Citizens Bank Park for years to come. The federal court’s report goes to show how the simple creation of new work can be considered novel and escape the claws of federal copyright law scrutiny. Additionally, the outcome of this dispute highlights the importance of retaining counsel for all matters involving intellectual property. Whether a copyright, trademark, patent, trade secret, etc. is involved, it is always good practice to have experienced lawyers guiding you on building your creations. Had the Phillies retained counsel on this topic before receiving the June 1, 2018, Harrison/Erickson letter, they might have been able to wholly escape costly litigation and keep the Phanatic on the field, instead of in the courtroom. Contact a lawyer at Gross McGinley, LLP today for your intellectual property matters!


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

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