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Friday, August 27, 2021

Phillies can continue using altered Phillie Phanatic as team mascot, federal judge rules

A judge has ruled that the Philadelphia Phillies can continue to use the Phillie Phanatic as their mascot, a decision that comes amid legal battles due to changes that were made to the mascot last year by the franchise. In her decision, United States Magistrate Judge Sarah Netburin in Manhattan wrote that the original creators of the Phillie Phanatic, Harrison/Erickson, “demonstrated” that the mascot had been registered as an artistic sculpture under copyright law, according to the Associated Press.

“H/E argue that P2 is not original because it is the ‘same old Phanatic’ or a ‘slavish copy’ of P1,” Netburn wrote. “If the Phillies had designed something so dissimilar from the Phanatic that it would no longer be recognizable as the Phanatic, then, by extension, it would not be a derivative of the Phanatic, and instead would be a completely different mascot.”

In 2019, the Phillies attempted to sue the original creators of the Phanatic. The team filed a federal complaint accusing Harrison/Erickson of going back on an agreement from 1984 to let the Phillies use the mascot “forever.” The team then decided in February 2020 to alter the appearance of the Phanatic, which included changes to the mascot’s feathers, as well as a few other tweaks.

RoyalsRetro (AG#1F) Posted: August 27, 2021 at 08:39 AM | 11 comment(s) Login to Bookmark
  Tags: phillies

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   1. JRVJ Posted: August 27, 2021 at 03:18 PM (#6036751)
Our long national nightmare is finally over!
   2. sunday silence (again) Posted: August 27, 2021 at 03:40 PM (#6036760)
Having read some early news reports last week, I question the legal reasoning. It seems the new mascot is simply a derivative of the original mascot, the rights to which are owned by the plaintiffs. The snippets of opinion I read didnt make much sense, but I havent read it all so cant be sure.
   3. Walt Davis Posted: August 27, 2021 at 06:05 PM (#6036795)
Legal issues aside, who but Rob Manfred would even consider changing baseball's best and most famous mascot? Is the extra $1-2 per Phanatic t-shirt the Phils get if they break this copyright really worth the risk?
   4. we all water; we all 57i66135 Posted: August 27, 2021 at 07:00 PM (#6036805)
can't wait for the philly phanatic to show up for a chennai super kings homestand.
   5. . . . . . . Posted: August 27, 2021 at 08:57 PM (#6036814)
This is going to be reversed.
   6. Captain Joe Bivens, Elderly Northeastern Jew Posted: August 28, 2021 at 07:30 PM (#6036888)
At least they didn't cut the poor thing's nuts off.
   7. John Northey Posted: August 28, 2021 at 11:03 PM (#6036926)
So I can form a team and uniforms for the Boston Red Sox then with a slightly redder sock or adjusting the white on the sox or shifting the position of the socks slightly? By this ruling I certainly could and I hope someone exploits it to the fullest degree.
   8. Ron J Posted: August 28, 2021 at 11:46 PM (#6036931)
#7, hence #5.
   9. sunday silence (again) Posted: August 29, 2021 at 12:06 AM (#6036932)

So I can form a team and uniforms for the Boston Red Sox then with a slightly redder sock or adjusting the white on the sox or shifting the position of the socks slightly? By this ruling I certainly could and I hope someone exploits it to the fullest degree.


it just doesnt seem to make much sense, the ruling. There's a similar doctrine having to do with Trademarks, although just to clarify the issue in this case is copyright of the character.

In trademarks there's a whole body of law that's sprung up having to do with when your mark evolves. Like the Betty Crocker lady she's changed over the years. or the NBC peacock remember when that got an upgrade from the old fashioned peacock? I think Aunt Jemima has changed too. Countless products. Well you cant change your TM too much otherwise there's no connection to the past character and you can't count as part of your continuous use. Its one part of TM law that's really got a whole body of case law on it.
   10. Slivers of Maranville descends into chaos (SdeB) Posted: August 29, 2021 at 09:07 AM (#6036941)

So I can form a team and uniforms for the Boston Red Sox then with a slightly redder sock or adjusting the white on the sox or shifting the position of the socks slightly? By this ruling I certainly could and I hope someone exploits it to the fullest degree.


No. But let's say you bought the rights to the "Red Sox" logo. Could you then issue the logo with a slightly redder sock? The ruling here is, that if the logo is still recognizably the Red Sox logo, you could under the rights agreement. If you altered the logo enough that it _wasn't_ recognizably the Red Sox logo (making them pink?), then it would be a different logo. Under neither condition could the original rights holder sue you for infringing on their rights.

Under the alternate theory, when you buy the rights to "the Red Sox logo", that only allows you to reproduce the logo as it then exists, with no alterations at all. Any alteration, however slight, then becomes an infringement on the original rights holder.
   11. sunday silence (again) Posted: August 30, 2021 at 12:20 AM (#6037062)
I dont think that's quite correct Slivers/JR. At least not in explaining what is happening in this case

H/E the original creators of the Fanatic, legally ended their agreement with PHI, that had allowed PHI to use the Phanatic. The judge agreed that they had the right to end the permission.

So the PHI dont have the right to use the Fanatic. SO they modified the old fanatic gave it scales or some such and claim its not a copyright violation. That seems wrong because it still very much resembles the original work. That sort of thing is known as "derivative work" and in most cases it will not allow you to avoid the original copyright owner.

Mr. Northey's analogy in no. 7 seems quite on pt. to me. (Other than the fact that he's talking about a logo which is TM law not copyright.) If we pretend that instead of a logo he's talking about a costume or a character, then yes, I agree. You cant simply change one small aspect of a copywritten artwork and then avoid the copyright

No. But let's say you bought the rights to the "Red Sox" logo. Could you then issue the logo with a slightly redder sock? The ruling here is, that if the logo is still recognizably the Red Sox logo, you could under the rights agreement.


OK but whats different here is that H/E the creators of the Fanatic, and owner of the copyright, terminated PHI right to use the likeness. So its not like you bought the rights to the Red Socks logo. Its like the Red Sox told you your agreement with us is over. and you proceed to use pink socks and the same everything else.

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