Currently standing nine games back of the Atlanta Braves in the National League East and vying for a National League Wild Card spot, the last thing the Phillies need is to have to fight to keep its most valuable player on the team. I am not talking about Bryce Harper (who has largely underperformed this year given his mega 13-year $330 million contract signed this past offseason). Rather, I am talking about the one personality that has consistently delivered for the organization in each and every one of its 41 years of service: the Phillie Phanatic.
Debuting in 1978, the Phanatic has been a staple of the Phillies organization, performing slapstick humor to entertain the fans, players, and even umpires at Phillies home games and making countless appearances at charity functions and other off the field events. But the Phanatic may be entering free agency for the 2020 season because of a dispute over its copyright between the Phillies and the creative design and marketing company Harrison/Erickson, Inc, which created the world famous Miss Piggy of the Muppets as well as other notable characters. Harrison/Erickson teamed up with the Phillies to develop the Phanatic image, concept, and costume in the 1970s, and in 1984 executed a purportedly perpetual assignment to the Phillies of its copyrights in the mascot for $215,000. However, in June of this year the firm announced it intends to invoke Section 203 of the U.S. Copyright Act which permits authors to terminate a transfer or license of copyright after thirty-five years from the date the transfer or license was made, regardless of its terms. Such a termination would result in the reversion of any and all rights Harrison/Erickson assigned in 1984 and could preclude the Phillies from displaying the mascot at any future games or events, or on any new merchandise.
The purpose of Section 203 is to give an author an opportunity to regain its rights in a copyrighted work on the theory that the author may have had little bargaining power at the time the assignment was made and that the work may now be worth far more than what it was at the time of assignment. In this case, Harrison/Erickson received the equivalent of around $533,000 present value for the mascot when it assigned its rights in 1984 whereas now the Phanatic, the most popular mascot in baseball, is arguably worth tens of millions of dollars if not more.
Of course, the Phillies will not go down looking. The Phillies filed an action in the Southern District of New York earlier this month for declaratory relief that the Phanatic can never be removed from their roster. The Phillies argue, at minimum, that they are co-authors of the mascot and that Harrison/Erickson has no rights under Section 203 or otherwise to terminate the Phillies’ copyrights in the Phanatic. The Phillies also contend Harrison/Erickson already had an opportunity to renegotiate the terms of the assignment as the mascot debuted in 1978, and six years later, after the Phanatic began to gain considerable popularity, Harrison/Erickson executed a perpetual assignment for a significant sum. The Phillies further asserted their rights in the Phanatic’s name and image under the Lanham Act as a potential means of still establishing a grounds for use even if Harrison/Erickson is determined to be the sole author of the mascot.
As this new case is still very much in the first inning, it may be a while before the parties officially settle the score. Absent an extension, Harrison/Erickson’s response to the Phillies’ complaint is due September 2, 2019.