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Phillies should be allowed to use modified Phanatic, federal judge in copyright dispute says

The recommendation, contained in a 91-page report, is now before another judge.

Left: The old Phillie Phanatic on Aug. 17, 2019. Right: The new Phillie Phanatic on Feb. 23, 2020.
Left: The old Phillie Phanatic on Aug. 17, 2019. Right: The new Phillie Phanatic on Feb. 23, 2020.Read moreMatt Rourke/AP; Yong Kim/Staff Photographer (custom credit)

The Phillies have a legal right to continue using their modified Phanatic despite copyright claims pursued by the mascot’s original creators, a federal magistrate judge in New York recommended in a 91-page report filed Tuesday.

Both sides can file objections to the report, which is now before Senior U.S District Judge Victor Marrero, who is presiding over the case.

The Phillies, facing a legal challenge on the team’s continued use of the mascot, unveiled a redesigned Phanatic during spring training last year. It had various tweaks, such as different-colored shoes, but was essentially recognizable as the Phanatic.

U.S. Magistrate Judge Sarah Netburn in her report said the changes were enough, legally speaking.

”To be sure, the changes to the structural shape of the Phanatic are no great strokes of brilliance, 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,” and is thus protected, Netburn said.

» READ MORE: The new Phanatic is an affront to Phillies fans everywhere, mascot makers say

David J. Wolfsohn, attorney for the Phillies, said in an emailed statement Wednesday: “The most critical issue in our case was whether we could continue to utilize the redesigned Phanatic. We are pleased that Judge Netburn agreed with us that the redesigned Phanatic and related artwork are derivative works that the Club can continue to utilize under the Copyright statute.”

In 1978, the Phillies’ then-executive vice president, Bill Giles, decided to develop a new mascot. The team reached out to famed puppeteer Jim Henson, the creator of The Muppets, who recommended artist Bonnie Erickson. She had worked with Henson and designed such characters as Miss Piggy.

Harrison/Erickson, a design firm founded by Erickson with her husband, Wayde Harrison, came up with the character of the Phillie Phanatic. The firm entered into an agreement with the team in 1978 and then a subsequent agreement in 1984.

With a potential renegotiation looming, both sides went to court in 2019.

Paul D. Montclare, attorney for Harrison/Erickson, could not be reached for comment Wednesday.