January 23rd, 2003

Self-Portrait 3

And I thought = I = was a loser

Fans Howl in Protest as Judge
Decides X-Men Aren't Human

Marvel Fought to Have Characters Ruled
Nonhuman to Win Lower Tariff on Toys


"Judge Judith Barzilay huddled late last year with a telepathic professor and a cast of mutants to ponder an age-old question: What does it mean to be human?

"In her chambers at the U.S. Court of International Trade, in New York, the judge examined Prof. X and the rest of his band of X-Men, all of them little plastic figures at the heart of a six-year tariff battle between their owner, Marvel Enterprises Inc., and the U.S. Customs Service.

"Her ruling thundered through the world of Marvel Comics fans. The famed X-Men, those fighters of prejudice sworn to protect a world that hates and fears them, are not human, she decreed Jan. 3. Nor are many of the villains who do battle with Spiderman and the Fantastic Four. They're all "nonhuman creatures," concluded Judge Barzilay.

"Marvel subsidiary Toy Biz Inc. pushed Judge Barzilay to declare its heroes nonhuman so it could win a lower duty rate on action figures imported from China in the mid-1990s. At the time, tariffs put higher duties on dolls than toys. According to the U.S. tariff code, human figures are dolls, while figures representing animals or "creatures," such as monsters and robots, are deemed toys.

"To Brian Wilkinson, editor of the online site X-Fan (x-mencomics.com/xfan/), Marvel's argument is appalling. The X-Men -- mere creatures? "This is almost unthinkable," he says. "Marvel's super heroes are supposed to be as human as you or I. They live in New York. They have families and go to work. And now they're no longer human?"

"Chuck Austen, current author of Marvel's "Uncanny X-Men" comic-book series, is also incredulous. He has worked hard for a year, he says, to emphasize the X-Men's humanity, to show "that they're just another strand in the evolutionary chain."

"Marvel issued this statement: "Don't fret, Marvel fans, our heroes are living, breathing human beings -- but humans who have extraordinary abilities ... . A decision that the X-Men figures indeed do have 'nonhuman' characteristics further proves our characters have special, out-of-this world powers."

"The X-Men series broke new ground when it began in 1963 by confronting racism and intolerance head-on. The good-hearted mutants rallied around their mentor, the wheelchair-bound Prof. Charles Xavier, to protect mankind, even as humans shunned and despised them.

"In 1996, Toy Biz sued Customs in the Court of International Trade, which arbitrates foreign-trade disputes between U.S. companies and the government. Toy Biz said its pantheon of action figures should be classified as toys instead of dolls. Customs insisted the figures are dolls, and thus subject to 12% import duties, instead of the 6.8% rate for toys. Duties have since been eliminated from both categories.

"Thus began the great debate over the figures' true being. Barbie is a doll. Pooh Bear's a toy. That much is easy.

"But what about Wolverine, the muscular X-Man with the metal claws that jut out from his fists? Wolverine has known many forms in his more than 40 years as a Marvel character. In some comics, he resembles a futuristic robot. In the movie "X-Men," he's a scruffy Canadian who drives a camper until falling under the protection of the telepathic Prof. Xavier, dean of an academy for gifted mutants in suburban New York.

"But is he human?

"To weigh that question, Judge Barzilay sat down with a sheaf of opposing legal briefs and more than 60 action figures, including Wolverine, Storm, Rogue and Bonebreaker.

"Toy Biz, in its filings, pulled no punches. The figures "stand as potent witnesses for their status as nonhuman creatures," the company argued. How could they be humans, Toy Biz said, if they possessed "tentacles, claws, wings or robotic limbs?"

"Toy Biz had good cause to pursue this line. Having its action figures declared toys would mean a hefty reimbursement of past duties, though the company declines to give specifics on how much was at stake.

"The U.S. government showed more feeling. Each figure had a "distinctive individual personality," the federal legal team argued. Some were Russians, Japanese, black, white, women, even handicapped. Wolverine, the government insisted, was simply "a man with prosthetic hands." Justice Department lawyers who handled the case didn't return calls seeking comment.

"Judge Barzilay, through a spokesman, said that she would let her 32-page decision speak for itself. But she described in her ruling how she subjected many of the figures to "comprehensive examinations." At times, that included "the need to remove the clothes of the figure."

"The X-Men, oddly, gave her the least trouble. They are mutants, she declared, who "use their extraordinary and unnatural ... powers on the side of good or evil." The judge observed how the character Storm, with her flowing white hair and dark skin, "can summon storms at will," while Pyro has a "mutant ability to control and shape flames."

"Thus the X-Men are "something other than human." Case closed.

"Tougher for the judge were figures from the Fantastic Four and Spiderman series. Judge Barzilay wrestled at length with Kraven, a famed hunter who once vanquished Spiderman, thanks in part to the strength gained from drinking secret jungle elixirs.

"The judge found that Kraven exhibited "highly exaggerated muscle tone in arms and legs." He wore a "lion's mane-like vest." Both features helped relegate him, in the judge's mind, to the netherworld of robots, monsters and devils.

"Judge Barzilay conceded that the closest call was the Mole Man, who once blinded the Fantastic Four with searing beams of light. The judge found him to be "stout and thick," with "exaggerated troll-like features" and very pale skin -- fitting for someone who lives underground. Given all that, Judge Barzilay concluded, the Mole Man was more mole than man.

"Veteran comics fan Christian Cooper, who once worked as a Marvel editor, thinks Judge Barzilay got carried away. If Kraven isn't human, what about the twisted villains in Dick Tracy? Or worse yet, Superman himself?

"Here's a guy who changes his clothes in a phone booth and flies through the air," says Mr. Cooper. "Does that mean he's now an animal?" "

Write to Neil King Jr. at neil.king@wsj.com

Sweet bleeding Jesus. I don't know what's sadder, the fact that there are people who are honest-to-Shiva upset over this, or the fact that Marvel Comics is not only acknowledging them as though they have an actual grievance, but actively trying to placate them.