By Nicolas Harris, JD Candidate L’22
The Phillie Phanatic, the Philadelphia Phillies baseball club’s furry green mascot, has brought comic mischief to the ballpark since 1978. But in June 2018, the question of copyright over the mascot became one of real, legal mischief for the club.
During the 1970s, the Phillies hired Bonnie Erickson, a creator of the Muppet Show, and Wayde Harrison to design the costume for a new mascot that became the Phanatic. Toward the end of the decade, Erickson and Harrison registered a copyright on the Phanatic for an “artistic sculpture.” They then assigned the copyright to the Phillies – a privately owned, for-profit organization – in 1984. But last summer, the creators of the mascot’s costume sent the club a letter asserting their right to reclaim the copyright as of June 15, 2020.
The basis for this assertion is 17 U.S.C. §203, a provision of the federal Copyright Act, which states that authors of creative works who assign a copyright to another owner on or after January 1, 1978 may reclaim that right during a period of five years starting 35 years after the transfer. This provision allows original authors to “reclaim works that were later found to be more valuable than when originally created,” which could easily be said to apply to the Phanatic, given its tremendous growth in popularity over the years both locally and nationally.
Since receiving the letter, the Phillies have sued Erickson and Harrison for declaratory relief, claiming among other things that the costume designers do not possess a valid copyright for the mascot because they are not the sole authors of the Phanatic character. While that lawsuit continues, the Phillies have sought to retain the overall look of their mascot – in the event Erickson and Harrison successfully reclaim copyright ownership this summer – by making slight but potentially decisive alterations to the Phanatic’s costume, such as changing the color of its fur and tail. These tweaks were motivated by §203(b) of the Copyright Act, which exempts derivative works like the reworked Phanatic from being reclaimed along with the originally transferred copyrighted works that inspired them. Thus, while the Phanatic might not look exactly the same as it has in the past, it appears the Phillies may have found a way to hold onto their beloved mascot for the foreseeable future.