It'd be pretty funny if the phanatic signed a series of 30 day contracts with various teams. Not mets and only to come back to the phillies of course.

JFLNYC wrote:Unfortunately for the Phils the creation of The Phanatic by an independent contractor would probably not be considered a work for hire under law even if the contract said it was. Therefore any agreement would most likely have been considered a license subject to termination. There is room for argument about whether it could have been considered a work for hire (with the Phils therefore considered the “author” for copyright purposes) but that argument would almost certainly not prevail in court.

Hmmm....what is the standard for WFH then? If you can't put that stipulation in a contract, then how is it done??

In addition to being stipulated in a written agreement (a requirement) the work must fall into one of several categories. Those categories represent more or less a smorgasbord of lobbying power at the time the law was written.

For example, one category includes a “contribution to a motion picture” which gives motion picture studios the ability to have everything contributed to a movie be deemed a work for hire (e.g., the screenplay, music, etc.). The MPAA has historically had very strong lobbying generally and particularly in regards to copyright matters.

It seems pretty clear to me the Phanatic design could not reasonably be shoehorned into any of the categories, but others may have a different opinion.

According to the case quoted in wikipedia the category is "a part of a motion picture or other audiovisual work." You could argue he was made to be part of the television broadcast or put on the jumbotron? IDK, you clearly know more about this than I do and either way like you said it's not a slam dunk, probably enough for them to hold onto until they settle it though. Luckily settling a dispute over the mascot doesn't count against the tax.

Arguing The Phanatic is part of a larger audiovisual work would be a clever and, AFAIK, novel argument but not to my knowledge supported by either case law or the legislative history. In any event the Phils did not follow necessary protocol by specifying in writing that the work was a wfh so the question is moot. If they had hired themselves a smart copyright lawyer at the time who knows what might have been?