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Can a Mascot Become a Free Agent?

PHILADELPHIA, PA - AUGUST 18: The Phillie Phanatic dances on his ATV prior to the game between the Seattle Mariners and Philadelphia Phillies on August 18, 2014 at Citizens Bank Park in Philadelphia, Pennsylvania. (Photo by Mitchell Leff/Getty Images)
By Christopher Coble, Esq. on August 06, 2019 12:00 PM

Our beloved mascots might be the only thing we can rely on in this topsy-turvy world of professional sports. Players, managers, and even owners come and go. Uniforms and logos change. If you're lucky, your team will build a new stadium every decade or so. And if not? Your team's owner will use your local government's refusal to finance said new stadium as an excuse to hijack your team to a new city or state.

Throughout it all, though, our mascots remain constant, the North Star of our fandom. We look to them for guidance and direction, and for comfort when the world of sport seems cold and heartless.

The thought of our mascot rousing the fans of another team or *gasp* a rival is unthinkable. Until now. It turns out the Philadelphia Phillies don't own the rights to the Philly Phanatic mascot outright, and the company that does is threatening to make the mascot a "free agent."

Is Nothing Sacred?

Harrison/Erickson, a design firm started by Bonnie Erickson (who worked Jim Henson to create Miss Piggy, Statler, Waldorf, and others) allegedly threatened to terminate the Phillies' rights to the Phanatic unless the team renegotiated an agreement to acquire the mascot's rights. Erickson designed the Phanatic in 1978 under a contract with team, and the Phillies believe they made a deal with Harrison/Erickson in 1984 to acquire all rights to the "artistic sculpture known as the 'Phillie Phanatic'" for $215,000.

But a lawsuit filed by the Phillies this week claims Harrison/Erickson contacted the team in June 2018 and advised them they terminate the 1984 contract and renegotiate for a new one:

The letter went on to claim that H/E had the right to terminate the 1984 Assignment under Section 203 of the Copyright Act and that, if The Phillies did not negotiate a fifth agreement with H/E, the Club would not be able to "continue to use the Phillie Phanatic" after June 15, 2020. Since sending that letter, H/E has threatened to obtain an injunction against the Phillies' use of the Phanatic and to "make the Phanatic a free agent" if the Club does not renegotiate the 1984 Assignment and pay H/E millions of dollars.

Liquidating a Beloved Mascot

Not only do the Phillies want to remain free to use (and license) the Phanatic for the foreseeable future, they claim a free agent Phanatic would violate federal trademark law. "Any use by another organization in commerce likely would confuse consumers as to source or sponsorship," their lawsuit alleges, "as well as dilute the distinctiveness of the Phillies' famous marks, and therefore would violate the Lanham Act."

The Phillies are also claiming that, if Harrison/Erickson is able to void the 1984 contract, they would be liable for breach of the duty of good faith and fair dealing and unjust enrichment.

"The Club therefore requests that this Court put an immediate end to H/E’s effort to hold up The Phillies with its threats of legal action and to make the Phanatic a free agent," the suit concludes. "By issuing a declaratory judgment in The Phillies' favor and an injunction against H/E's threatened actions, the Court will ensure that Phillies fans will not be deprived of their beloved mascot of 41 years and that The Phillies' investment of creativity, time, effort, and money in the Phanatic will not be liquidated by H/E."

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