The termination provisions of copyright law allow an author to reclaim rights after 35 years, but the Phillies say that H/E is falsely claiming it “created the copyrighted character” while “ignor[ing] The Phillies’ role in designing the Phanatic’s costume.”
In its lawsuit seeking a declaratory judgment that the termination is ineffective and that H/E cannot sue The Phillies for copyright infringement, the team’s lawyers at Duane Morris offer several legal theories.
First, the team says that since H/E has renegotiated the terms of a license assignment over the years, H/E has sacrificed its ability to terminate. Second, the team asserts that H/E fraudulently obtained a registration from the Copyright Office by calling the Phanatic costume an “artistic sculpture.” Third, the team insists it is a co-author since it played a material role in designing the distinctive features of the costume’s design, and fourth, designing the character at large. Fifth, the team says even if termination is effective, it has the right to use derivative works. Sixth, the team says that the threat to make the Phanatic a “free agent” implicates trademark law. And seventh, the Phillies says that H/E may be liable to the team for breach of the duty of good faith and fair dealing.
This will be a fight worth keeping an eye on. Can a mascot become a free agent? We will soon find out.
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