Phillies File Lawsuit Over Ownership Rights to Phanatic Costume

The Philadelphia Phillies have recently filed a lawsuit against the design firm that created the Phanatic, Harrison/Erickson, over ownership rights to the Phanatic costume. Following decades of negotiation and agreements, the Phillies claim that Harrison/Erickson has now demanded millions of more dollars for the continued rights to use the Phanatic.

A Brief History of the Phillie Phanatic Costume

Our story starts in 1978 with a letter of agreement that shows the Phillies paid $3900 for the Phanatic costume but, surprisingly, left all the copyright rights to Harrison/Erickson.

After the first six years of the Phanatic’s existence, the mascot became wildly popular in Philadelphia, prompting Harrison/Erickson to rework the deal. So, in 1984, the Phillies and Harrison/Erickson entered into an assignment agreement in which the Phillies paid $215,000 for the lifetime rights in the Phanatic costume.

All was then quiet for 30 years, until June of 2018 when the Phillies received a letter from Harrison/Erickson saying that they were going to terminate the 1984 agreement under an obscure provision of the U.S. Copyright Act, specifically Section 203. This section states that a party to an assignment can terminate an agreement after 35 years. This provision exists in order to protect artists who sell their artwork before they know the true market value of their creation, giving them the opportunity to renegotiate years later.

How Will the Phillie Phanatic Lawsuit Be Resolved?

Harrison/Erickson has a legitimate case, but the Phillies also have a strong defense. Ultimately, the Phillies must take Harrison/Erickson very seriously. If they terminate the agreement under Section 203 of the Copyright Act, it is very possible a court could order the Phillies to stop using the Phanatic costume.

That said, the Phillies do own trademark rights in the Phanatic, as well as certain copyright rights. This would make it virtually impossible for any other team to start using the Phanatic, leaving Harrison/Erickson with only one real buyer. This suggests that the Phillies and Harrison/Erickson should certainly be able to work out an amicable agreement.

While I do anticipate the Phillies will pay some money to Harrison/Erickson for the continued use of the costume, I fully expect the Phanatic to remain safely in place and ever present at baseball games at Citizen’s Bank Park.

Update: February 13, 2020

Based on a letter submitted to the court in January 2020, the litigation between the Philadelphia Phillies and Harrison/Erikson is still extraordinarily active.

The Phillies have provided over 24,000 pages of discovery to Harrison/Erikson, and Harrison/Erikson has provided over 2,600 pages of documents. The letter also suggests that the parties are headed toward a slew of depositions, with Harrison/Erikson asking to depose 19 different Phillies employees, former employees, and people associated with the organization.

If litigation continues and the parties are not able to settle the case within a few months, they could be headed to trial later this year.

Josh Gerben, Esq.

Josh Gerben, Esq. is the founder and principal of Gerben IP. In 2008, Mr. Gerben started the firm to provide high-quality trademark services at reasonable prices. Today, he is recognized by the World Trademark Review as a top trademark filer, having registered over 7,500 trademarks. The contents of this blog are for informational purposes only and may not be relied on as legal advice.

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