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The fight for the Phillie Phanatic: Who owns the essence of an iconic mascot?

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When Jerome Bartlett recounts the story of his entrance into professional mascoting, it's hard to ignore the symmetry of a critical moment. He got his big break despite, well, his big break.

Bartlett was 20 years old in 2007 when the New Orleans Hornets - not yet the Pelicans - invited him to try out for the role of Hugo, the blue wasp mascot whose audacious in-game routine called for him, on occasion, to dunk off a high-flying front flip. Practicing for the trick didn't prepare Bartlett for the feel of unfamiliar equipment and, as he remembers it, a trampoline that vaulted him straight in the air rather than forward. His tibia bore the brunt of his fall to earth.

The Hornets, needing Hugo to dunk live within weeks, gave the job to another finalist. Bartlett's silver lining arrived courtesy of Dave Raymond, an independent mascot talent consultant who watched Bartlett audition, complimented his skill and potential, and recommended him for another opportunity upon his return to health. It was high praise from a legend of the genre - a man best known and admired in baseball circles as the original Phillie Phanatic.

"Being contacted by one of the OGs who belongs on the Mount Rushmore of mascoting?" Bartlett said. "It was a true honor."

Mascoting is a tight-knit world, Bartlett said on the phone last week from San Antonio, where he used to work for the NBA's Spurs as the backup inhabitant for The Coyote and now runs his own mascot training and staffing company. Everyone knows, or knows of, everyone else in the profession. And lately, Bartlett said, everyone's taken to discussing their community's juiciest ongoing storyline: the battle for ownership of Raymond's old persona.

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The Phanatic is at the center of a copyright dispute proceeding in New York federal court against the backdrop of Grapefruit League play in Florida, where the Philadelphia Phillies recently unveiled a series of cosmetic changes to the franchise's furry green cheerleader. The revamped Phanatic has flightless wings, scales underneath his arms, and stars around his eyes. His shoes are now red, his tail blue, and his backside considerably heftier than in past seasons.

Tom Burgoyne, the Phanatic costume's current occupant, told the Philadelphia Inquirer that the makeover was carried out in service to his character's backstory: the Phanatic hails from the Galapagos Islands and must evolve to survive. But he also acknowledged that the changes were "kind of kick-started" by the Phillies' pending lawsuit against the company that created the mascot in 1978 - litigation that seeks to affirm the team's right to maintain possession of the Phanatic heading forward.

The lawsuit, filed last summer and now in the discovery phase, asks for a declaratory judgment that would prevent the Harrison/Erickson design firm from terminating a 1984 agreement in which the Phillies bought rights to the Phanatic for $215,000.

In a counterclaim, the proprietors of H/E, Wayde Harrison and Bonnie Erickson, argue that federal law gives them a window to terminate the agreement as of this June, more than 35 years after the deal was signed (and two years after H/E provided the Phillies due notice). At that point, H/E maintains, the Phillies would need to negotiate a new agreement to keep using the Phanatic.

"The 'business decision' by the Phillies to roll out this 'new' Phanatic is a transparent attempt to deny us our rights under the Copyright Act," Erickson said in a statement. "We would love to have the real Phanatic continue with the Phillies.”

If the lawsuit isn't settled out of court and continues to trial, any resolution would hinge on the minutiae of American copyright law. Spiritually, though, the dispute also presents a set of deeper questions that are downright philosophical. What makes an iconic mascot who he is? (His outward appearance? What he means to fans of the team he represents?) And who has the strongest claim to ownership of that essence?

"The celebrity of the costume is created by the team," Bartlett said, pondering one side of the debate. "You could make a trash bag famous if you've got a good performer and the support of the team behind it." On the other hand, he later added, it's important to remember whose handiwork molded the mascot in the first place.

"Is it really the Phillies that created the pattern? I don't think it was," Bartlett said. "I think it was the mascot fabrication company that really created the pattern and design and the look of the character."

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The Phillies argue in their lawsuit that they not only helped design the Phanatic's initial look back in the late 1970s - H/E disputes this - but that they should be considered the sole "author" of the mascot's outward persona. ("The Phillies took a lifeless costume and brought it to life, transforming it into a beloved character," the team wrote in its filing.) The suit says the team accomplished this in part by introducing "dozens of costume modifications" in the years since 1984; it includes as exhibits photos of the Phanatic wearing a black dress, an Uncle Sam hat, and a red jumpsuit with a Phillies logo, among other assorted outfits.

The Phillies filed their suit long before spring training opened, but the team's newest alterations to the costume - which Harrison called "an affront to our intellectual property rights" in the firm's statement - seem designed to bolster a claim that the current Phanatic is fundamentally different from H/E's original creation, said Susan Scafidi, the director of Fordham University's Fashion Law Institute. Per this line of argument, the Phanatic circa 2020 should be considered a separately copyrightable derivative whose rights belong to the Phillies.

"The sticking point is: Have they created an actual derivative work?" said Cathay Smith, a copyright expert and law professor at the University of Montana. If the Phillies were to successfully argue that they have, this iteration of the Phanatic would remain team property, but small costume tweaks alone may not constitute a persuasive case.

"If the rights to the original transfer were terminated, then I don't think the little tiny changes to the Phanatic (costume) alone add up to much," Scafidi said. "If you can't use the underlying original Phanatic, then having stars around the eyes or changing the sneakers doesn't leave the Phillies with much of a mascot."

Robert M. Jarvis, a professor at Nova Southeastern University in Florida who's written extensively about baseball and the law, doubts the Phillies' latest cosmetic changes strengthen their case. In an interview, Jarvis said the endurance of some of the Phanatic's foundational traits - his name, his green fur, his team jersey - shows that the Phillies are still employing the basis of H/E's design, which suggests he remains essentially the same mascot as always.

"If I'm a judge, I go, 'Oh, come on. This is bad faith,'" Jarvis said. "You're clearly still using their design and you've made very minor, superficial changes."

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In H/E's court filing, Harrison and Erickson's lawyers wrote that the firm wants to terminate the Phanatic copyright agreement so that it can renegotiate with the Phillies "for a fair price." As Scafidi and Smith note, the team owns trademark rights to the mascot that would persist even if the 1984 agreement is discontinued, meaning H/E's owners still wouldn't be able to do much with their creation.

"If the Phillies can't use the Phanatic, nobody can use the Phanatic," Scafidi said. This conclusion led her and Smith to predict in separate interviews that the team and design firm will ultimately settle.

"I really think that at this point, it's just about the number," Scafidi said, "and a number the public will probably never learn - unlike most other baseball statistics."

A discovery hearing in the Phillies' lawsuit is scheduled for March 19 in New York, leaving open, for now, the possibility that the case will definitively resolve the question of whose claim to ownership here is most deserving. In the absence of that legal clarity, we can seek insight from a different kind of expert source - the type of person directly responsible for imbuing a mascot with personality and soul.

When Bartlett became smitten with mascoting in high school, he found himself inspired by a host of characters at the top of the field: the San Diego Chicken, Utah's Jazz Bear, the Phoenix Suns Gorilla, and others whose creativity and verve made them mainstays on ESPN highlight reels. Included among their ranks was the Phanatic, whom the trailblazing Raymond fashioned into the "Godfather of sports entertainment," Bartlett said, proving mascots could be counted on to enhance the game experience no matter the quality of the home team.

In the years since his and Raymond's paths first crossed, Bartlett's career has grown increasingly multifaceted. His company conducts training camps for aspiring mascots. He dispatches in-house performers to run educational programs and to travel to minor-league baseball stadiums across the U.S. He has seen teams - and helped minor-league baseball's San Antonio Missions - overhaul their mascot's entire look, which has contributed to a particular belief of his about any such character's identity. A mascot's appearance and outfit can change, but that doesn't change his nature, and what he represents.

"As far as the performer inside," Bartlett said, "the performer is always going to be the Phanatic."

Nick Faris is a features writer at theScore.

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