Wade Harrison and Bonnie Erickson, credited with designing the Philadelphia Phillies’ mascot, the Phanatic, have filed a reply to a lawsuit alleging that the creators were threatening the baseball club with pulling the team’s rights to use the mascot. The creators have described the lawsuit by the Phillies as a “weapon.”
At issue is whether the creators of the Phanatic can use the Copyright Act’s termination right – a rule made to allow authors to regain control over works they created, but signed away. The pair originally threatened to terminate the team’s rights to the mascot unless they re-negotiated the terms of the agreement. The Phanatic was created in 1978, and after the mascot became wildly popular, another deal between the creators and the team was reached in 1984. The Phillies are arguing that the termination right is inapplicable and that the creators only had one chance to invoke it, which was used in the 1984 deal, an argument the duo call “concocted.”
Essentially, the Phillies are arguing that the pair is unfairly trying to make the Phanatic a free agent by terminating the Phillies’ rights to the mascot. The creators contend that the team is suing over a baseless claim in an attempt to get them to accept a lower amount for the continued use of the character. They further argue that the use of the term “free agent” was used in a moment of levity during a courteous, in-person negotiation.
The Phillies also accused the pair of defrauding the United States Copyright Office by characterizing the Phanatic in order to gain a copyright registration. They also signaled to a potential trademark law issue, arguing that the Lanham Act could be violated and that consumers could be confused if the Phanatic is used by a third party.
We will continue to monitor this situation.