A court fight over the future of someone (something?) close to the heart and soul of Philadelphia -- the Phillie Phanatic -- has entered its third year, and there is not yet an end in sight.
But the legal question of who owns the Phanatic will not stop the baseball mascot from appearing at Citizens Bank Park for the foreseeable future, a federal judge ruled this month.
Lawyers for the original creator of the now 37-year-old half-muppet, half-mythical creature said in a statement Tuesday that they will continue to fight the Philadelphia Phillies baseball franchise over copyright issues related to the Phanatic's ownership.
"Our clients are gratified that the decision confirmed the undeniable truth: that they alone created and originally owned the Phillie Phanatic—baseball’s most famous and enduring mascot who is enshrined in the Baseball Hall of Fame in Cooperstown," lawyers for Bonnie Erickson and Wayde Harrison said. "At the same time, we disagree with that part of the decision which found that very minor changes to the Phanatic made by the Phillies (characterized even by the judge as 'no great strokes of brilliance') were sufficient to create a 2.0 derivative Phanatic that the Phillies can use (but with significant limitations) going forward. We maintain that none of the trivial changes made by The Phillies — which debuted four months before their rights in the original Phanatic expired — are original artistic expression, and do not individually or collectively constitute a copyrightable derivative work."
In a 91-page decision on Aug. 10, U.S. Magistrate Judge Sarah Netburn in Manhattan indeed decided that changes by the Philadelphia Phillies to the Phillie Phanatic mascot last year were sufficient to allow its continued use by the club. At the same time, she decided that creators of the Phillie Phanatic had demonstrated the mascot had been registered as an artistic sculpture under copyright law.
Her ruling appeared to be a half-win for both sides, but the tiebreaker for Phillies fans is that the Phanatic can keep showing up for work at the ballpark in South Philadelphia.
The Phillies unveiled the redesign of the green mascot in February 2020, a new look featuring flightless feathers rather than fur-colored arms, stars outlining the eyes, a larger posterior and a powder blue tail, blue socks with red shoes, plus a set of scales under the arms.
Netburn ruled that the Phillies franchise dodged a bullet, for now, when it unveiled a "new look" Phanatic in February 2020. The Phanatic now features feathers instead of its original fur, stars around its eyes, scales under its arms and a larger backside and tail.
Fans weren't exactly thrilled with the changes when they were first shown publicly. Still, the changes apparently saved the Phanatic.
Netburn cited a 1991 U.S. Supreme Court decision, Feist Publications Inc. v. Rural Telephone Service Company Inc., in determining that the new-look Phanatic was different enough from the original version created by Erickson in the early 1980s to allow the Phillies to continue its use.
“To be sure, the changes to the structural shape of the Phanatic are no great strokes of brilliance," she wrote, "but as the Supreme Court has already noted, a compilation of minimally creative elements, ‘no matter how crude, humble or obvious,’ can render a work a derivative.”
Lawyers for Harrison and Erickson said in a statement that “if left uncorrected, this low bar for a derivative work will thwart the very purpose and intent of the copyright termination provisions established by Congress to fairly compensate original creators for their works 35 years after they have licensed or granted rights in their creations, as Bonnie and Wayde did in 1984. The fight of the original creators for their just due will continue.”
The Phillies declined comment, citing the ongoing litigation, spokeswoman Bonnie Clark said.
The case remains in federal court in Manhattan, with a senior judge now taking a look at Netburn's decision and future ramifications for both sides.