Phillie Phanatic Lawsuit Phinished

The Phillie Phanatic is one of Major League Baseball’s most recognizable mascots, but did you know that its existence and ownership was at the heart of a recent sports law controversy? You would be excused if you didn’t, but thanks to a recent out-of-court settlement, it appears that both the Phanatic’s creators and the Philadelphia Phillies are satisfied with their new arrangement, even though terms of their settlement are not immediately apparent.

The Phillie Phanatic was commissioned after the 1977 season, when the Phillies and executive vice-president Bill Giles[1] decided that a zany mascot like the San Diego Chicken would serve them better than their current mascots, Revolutionary War-era brother Philadelphia Phil and sister Philadelphia Phillis.[2] The Phillies commissioned former Jim Henson artists Bonnie Harrison and Wayde Erickson to create the Phillie Phanatic, which, according to canon, is a flightless bird born in the Galápagos Islands that emigrated to the Phillies’ then-ballpark, Veterans Stadium.[3] While the Phanatic made his public debut in Philadelphia in 1978, Harrison and Erickson actually retained the copyright to the Phanatic at first.[4] Six years later, the creators agreed to sell the copyright to the Phillies for a sum total of $250,000[5]--which in 1984 was a little less than one month’s salary for Hall of Fame third baseman Mike Schmidt.[6]

In 2019, the creators attempted to invoke 17 U.S.C. § 203, in order to reclaim the copyright and negotiate a new license commensurate with new economic realities in Major League Baseball. If Harrison and Erickson could regain ownership of the copyright, they could potentially be free to sell the Phillie Phanatic to another team in any other market...or maybe even take the Phanatic on the road as the ultimate barnstorming free agent, once again, kind of like the San Diego Chicken. In response to Harrison and Erickson’s threats to attempt to negotiate a new copyright deal, the Phillies sued Harrison and Erickson, asserting that they are the true copyright owners of the Phillie Phanatic and that the creators had “an improper copyright.”[7] The next year, in 2020, the Phillies literally made their own Phillie Phanatic, in what was clearly a maneuver to prove how little the Phillies thought the creators’ copyright was worth. The changes are easy to see in this side-by-side[8]...the Phanatic’s blue feathers are now a lighter shade of blue, it has a slightly smaller snout (a Ryne-oplasty by Ryne Sandberg, perhaps?), and it wears blue socks with red shoes instead of red stirrups with green shoes. But Harrison and Erickson still saw a green bird wearing a Phillies jersey with a star for a number and the name Phanatic on the back, so they amended their countersuit against the Phillies citing “willful violations” of the copyright.[9]

After the Phillies and the Harrison/Erickson team exchanged their first pitches, U.S. Magistrate Judge Sarah Netburin (that’s a special kind of judge who specializes in sorting out evidence...kind of like pre-calling the balls and strikes), from the Southern District of New York (that’s the federal courthouse based in Manhattan, New York City), concluded that Harrison and Erickson owned the copyright to the original Phillie Phanatic, but that the Phillies made enough substantial changes to make their new Phanatic a “derivative product” that was eligible to stay on the Phillies’ payroll.[10] Reading Netburin’s verdict, it sounds like she had no choice but to rule in the Phillies’ favor for the new Phanatic:

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.[11]

Meanwhile, in this writer’s opinion, the Phillies were smugly confident all along in their likelihood of success in this case. In a tweet from the Philadelphia Phillies themselves, they said their Phillie Phanatic “has evolved, but clearly hasn’t matured.”[12]

Ultimately, after the Magistrate Judge made her findings, she transferred the case to Senior U.S. District Judge Victor Marrero.[13] But as of last Friday, the parties agreed in principle to settle their lawsuit.[14] Why would the Phillies settle the lawsuit if they were so confident? We don’t know the terms of the settlement, but maybe Harrison and Erickson accepted peanuts to go away. Or at least enough money so that the Phillies could know that “The Original Phillie Phanatic” wouldn’t be sticking its tongue out at the Phillies, stealing publicity and goodwill. Ultimately, unless something goes terribly wrong, the Phillie Phanatic will not be a free agent and he will still be delighting and/or terrorizing fans of all stripes at Philadelphia Phillies home games.

Mike Engle is an associate attorney for the United States federal government. During his time at Hofstra Law School in New York, his articles were published in the Hofstra Labor & Employment Law Journal and the DePaul Journal of Sports Law & Contemporary Problems. He was also an invited guest on the now defunct vlog Law & Batting Order.

Mike resides in Upstate New York with his wife, Gillian. Interact with him on Twitter @EngleLaw29, but only during off-duty hours and preferably not during Montreal Canadiens games!

[1] Moran, Robert, Phillies Should Be Allowed to Use Modified Phanatic, Federal Judge in Copyright Dispute Says, THE PHILADELPHIA INQUIRER (Aug. 11, 2021), https://www.inquirer.com/phillies/philadelphia-phillies-phanatic-mascot-lawsuit-copyright-20210811.html. [2] Philadelphia Phil and Phillis, BASEBALL REFERENCE (June 7, 2019, 13:31) (accessed Oct. 12, 2021), https://www.baseball-reference.com/bullpen/Philadelphia_Phil_and_Phyllis. [3] Felthousen-Post, Cyn, 1978: Phillie Phanatic Makes His First Ever Appearance, Starting Weird Legacy, GROOVY HISTORY (Apr. 25, 2020) (accessed Oct. 12, 2021), https://groovyhistory.com/phillie-phanatic-philadelphia-history-facts [4] AlBaroudi, Wajih, Phillie Phanatic Staying in Philadelphia After Phillies Settle Lawsuit with Mascot Creators, CBS SPORTS (Oct. 8, 2021, 20:14), https://www.cbssports.com/mlb/news/phillie-phanatic-staying-in-philadelphia-after-phillies-settle-lawsuit-with-mascot-creators/ [5] Id. [6] Mike Schmidt Stats, BASEBALL REFERENCE (accessed Oct. 12, 2021), https://www.baseball-reference.com/players/s/schmimi01.shtml#all_br-salaries [7] Reichard, Kevin, Split Decision on Phillie Phanatic Copyright Battle, BALLPARK DIGEST (Aug. 24, 2021), https://ballparkdigest.com/2021/08/24/split-decision-on-phillie-phanatic-copyright-battle/. [8] Moran, supra at Note 1; Farzetta, Marc, TWITTER (@MarcMarzetta) (Feb. 23, 2020, 11:42), https://twitter.com/MarcFarzetta/status/1231620380764311553?s=20. [9] Hermann, Adam, Phillie Phanatic Legal Battle Reignites With a Fiery Update, NBC SPORTS (Oct. 1, 2020), https://www.nbcsports.com/philadelphia/phillies/phillie-phanatic-creators-reignite-legal-battle-claim-team-now-stealing. [10] Reichard, supra at Note 7. [11] Id., quoting Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991). [12] Philadelphia Phillies, TWITTER (@Phillies) (Feb. 23, 2020, 13:26), https://twitter.com/Phillies/status/1231646496929480707?s=20. [13] Moran, supra at Note 1; Reichard, supra at Note 7. [14] AlBaroudi, supra at Note 4.