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Mon, Feb. 17

Kobritz: Phillies Phanatic goes to court

When is a “forever” contract not forever? We are about to find out, thanks to a lawsuit involving one of the most popular and recognizable sports mascots of all time.

The Philadelphia Phillies are suing the design and merchandising firm that helped them create the costume of their iconic mascot, the Phillie Phanatic. According to a complaint filed in U.S. District Court in Manhattan, in the 1970s Bill Giles, who was the Executive Vice President of the Phillies, had a vision for the team mascot - a green, fat, furry, big-nosed character who would appeal to children.

To help him develop a costume, Giles sought the assistance of Harrison and Erickson, Inc., a design and marketing company. Working closely with Giles and other team personnel, H/E created the costume in a mere two weeks at a total out-of-pocket cost of $2,000. According to the complaint, the Phillies paid H/E $215,000 plus expenses for a licensing agreement. The Phanatic, brought to life by Dave Raymond, an intern in the Phillies' marketing department, debuted in 1978. He was an instant hit with kids and adults thanks to his playful routines that poked fun at anyone in the ballpark.

In case you’re not familiar with the Phanatic, his biography describes him as standing 6-foot-6, boasting a 90-inch waistline and a slight case of body odor. He allegedly hails from the Galapagos Islands; his diet consists of cheesesteaks, soft pretzels, hoagies, scrapple and Tastykakes; and his favorite movie is Rocky.

In 1984 H/E and the Phillies entered into a new agreement, with the team paying the firm additional compensation in exchange for assigning the mascot to the them forever.

Not so fast, said H/E. Last year the design firm sent the Phillies a termination letter under the provisions of the U.S. copyright law that allows an author to reclaim rights after 35 years. The Phillies are crying “fowl,” saying H/E is falsely claiming it created the copyrighted character while ignoring the Phillies' role in designing the Phanatic's costume. If H/E can terminate the 1984 agreement, the team could lose exclusive control of the mascot after June 15, 2020.

Like most disputes and lawsuits, this one is about money. H/E is attempting to cash in on the incredible popularity of the Phanatic, something they failed to anticipate 35 years ago. In their response, attorneys representing the Phillies offered a number of legal theories why H/E’s attempted termination is ineffective.

Without delving into the legal details, the lawsuit involves issues of authorship and intellectual property. Regardless of the outcome, there are broad implications for the entertainment industry, which means lawyers who specialize in that realm are paying attention as a matter of professional interest. Phillies fans, on the other hand, are on edge hoping their furry mascot doesn’t become a free agent, which would allow him to root for another team, perhaps a bitter rival.

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