The Copyright Office Will Not Weigh in on Philadelphia Phillies’ Copyright Dispute

This article provides an update on the Philadelphia Phillies’ copyright battle with the design firm Harrison/Erickson Inc., which created the Phillie Phanatic mascot. An article discussing the details of the underlying dispute can be found here.

Recently, the Phillies asked the New York court to find Harrison/Erickson’s copyright registration void because the registration incorrectly classified the Phanatic mascot as an “artistic sculpture.” In response, Harrison/Erickson requested that the court submit a letter to the Copyright Office under 17 U.S.C. § 411(b)(2) seeking advice on whether the Copyright Office would have refused the registration if it knew that certain information in the application was inaccurate.

Section 411 of the Copyright Act requires a district court to solicit the type of advice requested by Harrison/Erickson when certain statutory conditions are met. Before a court seeks advice from the Copyright Office, the requesting party must show that “(1) the registration application included inaccurate information; and (2) the registrant knowingly included the inaccuracy in his submission to the Copyright Office.”

At an oral hearing on the dispute, however, counsel for Harrison/Erickson repeatedly stated its belief that it did not think that there were any inaccuracies in the copyright application. Despite this position, Harrison/Erickson argued that the Court was nonetheless required to seek the Register of Copyrights’ advice on whether the Phillie Phanatic should have been identified as an “artistic sculpture” and whether referring to the Phillie Phanatic as such would have been consistent with Copyright Office practices at the time of the application.

The Phillies, on the other hand, contended that the application contained inaccuracies, specifically that the work was described as an “artistic sculpture” rather than a “costume.” Further, the Phillies argued that such a factual dispute regarding the characterization of the Phanatic is not properly resolved by requesting Copyright Office advice under § 411(b)(2).

The U.S. District Court for the Southern District of New York ultimately held that Harrison/Erickson could not prove that it satisfied the necessary statutory conditions required before seeking advice from the Copyright Office. Because the parties disputed whether the Harrison/Erickson’s registration application knowingly contained inaccurate information, the court held that inviting the Copyright Office to comment on the dispute would allow it to weigh in on an issue “reserved for the finder of fact.” As such, Harrison/Erickson’s request was denied.

This case is The Phillies vs. Harrison/Erickson, Inc., 1:19-cv-07239-VM-SN (S.D.N.Y. Aug. 2, 2019).