He’s green, a little mean, and often obscene – it’s the mascot everyone loves to hate, the infamous Phillie Phanatic. After the filing of a new federal lawsuit, however, there’s an ominous question looming of whether the 41-year-old relationship will continue in the city of brotherly love.

Back on August 2, 2019, the Philadelphia Phillies filed a copyright lawsuit in federal court against Harrison/Erickson, Inc. (H/E) over the future use of the Phanatic as a mascot. Reportedly, H/E asserts that its primary members, Bonnie and Wayde Erickson, designed the iconic mascot back in 1978. Per the lawsuit, the Phillies received a demand letter from H/E to the tune of millions of dollars in exchange for keeping the rights to the Phanatic; otherwise, according to H/E, the Phantic will enter the free agency market.

The Origin of the Phanatic

Back in 1978, the Philadelphia Phillies – or, more specifically, club vice president Bill Giles – contracted with H/E to create a more memorable face of the franchise. The partnership made perfect sense; Bonnie Erickson had proven herself to be a monumental force in the puppet design industry, hailing as the former vice president of the Jim Henson Company and having created a plethora of characters, including Miss Piggy, Statler and Waldorf, and numerous sports mascots.

Under the 1978 agreement, H/E was to provide: “(1) a design for the Phillie Fanatic . . . (2) a costume built from the design to measurements provided by the Phillies, and (3) delivery on or before April 30, 1978.” This also included a sketch of the proposed creation, attached by H/E. Concurrently, the Phillies would provide: “measurements for the wearer of the costume as required by forms sent March 14, 1978, [and] (2) five yards of material used in the uniform shirt, an extra large shirt, a pair of extra large baseball stockings and a large Phillie Logo ‘P’.” Ultimately, this agreement compensated H/E roughly $5,900 for all services rendered.

Fast forward to 1984, which could prove to be pivotal should this litigation continue to a full-blown trial and jury decision. The Phillies and H/E renegotiated the 1978 agreement and resulted in the Phillies ultimately funding H/E an additional $215,000 in an effort to constitute the final purchase price for H/E’s interests in the Phanatic. As an added bonus, the Phillies were – through 1999 – to provide H/E with four tickets to each world series, league championship game, or All-Star Game hosted in Philadelphia.

Per Giles’ 2009 autobiography Pouring Six Beers At A Time: Stories From a Lifetime in Baseball, H/E offered Giles the choice in 1978 of buying either the costume or the character’s copyright in its entirety; after purchasing merely the costume, Giles described it as “the worst decision of my career.” Indeed, in its inaugural season, the Phanatic brought in over $2 million in merchandise sales that year alone, thus leading to the 1984 purchase of the copyright for $215K. As of 2016, the Phanatic continued to account for approximately 10 percent of overall retail sales at Philadelphia’s home ballpark.

Philadelphia vs. H/E

There are three sides to every argument: yours, mine, and what actually happened. While we’re unable to recognize the latter without omnipresence, we’ll stick to the more predictable sides.

First, some legal mumbo-jumbo; the key black-letter law at issue here is Section 203 of the Copyright Act, otherwise known as the Termination Right. Essentially, this section crafts an opportunity for creators to reclaim a previously relinquished copyright. Per the section, this right cannot be exercised until 35 years after the agreement. However, as pointed out by the Phillies’ suit, the Copyright Act limits this “Termination Right” to a single opportunity; put differently, authors only have one chance to revisit the terms of a previous agreement.

For the Phillies, then, the argument becomes two-fold: first, they will likely try to establish themselves as the original creator of the Phanatic; second, they will focus in on the idea that the 1984 renegotiation qualifies as H/E’s single opportunity to reclaim its ownership under the Copyright Act.

Regarding the creation aspect, Philadelphia will argue the narrative that Giles’ specific design requests serve as the original design of the Phanatic. Per the suit, Giles imagined the Phanatic as “green, fat, furry, big-nosed, and instantly accessible to children.” Of course, in response, H/E would likely note that, were it the case that Giles created this infamous character, there would then exist no need for H/E to get involved in the first place; put differently, the Phanatic never could have existed were it not for the immense ingenuity and vast experience of Bonnie Erickson.

Typically, in a scenario such as this, the “work made for hire” moniker is attributed; under the Copyright Act, if the “work made for hire” designation is utilized, an employer is considered the author even if an employee – or in this case, design firm – actually creates the work. The absence of this, then, rings as loudly as the Liberty Bell.

Turning next to the 1984 renegotiation argument, H/E’s rebuttal would likely include reference to Giles’ aforementioned 2009 autobiography, wherein Giles laments his missed opportunity to purchase the copyright in 1978 when first presented the opportunity. This begs the question: if the copyright was not initially purchased in perpetuity until 1984, would that negotiation be a first or second bite at the big green apple? Were this litigation to continue through the trial stages, the jury would likely wrestle with this inquiry.

Likely Resolution

Once the dust settles and the media hoopla surrounding whether the Phanatic will become a staple in a new city becomes stale, all signs would seem to indicate an anticlimactic resolution. Given the gap between the initial demand letter of June 2018 and the start of the August 2019 lawsuit, the logical rationale is that the two sides have actively been exploring a potential agreement in lieu of further litigation.

Indeed, at the end of the day, this posturing likely ends in an additional renegotiation to keep the Phanatic in Philadelphia, with the Phillies compensating H/E in connection with the vast increase in value its seen over the past several decades. Until then, we can all keep imagining the frenzy of the Phanatic in free agency – think Bryce Harper, but green with a megaphone for a snout.