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Why a U.S. Federal Court Ruled That Marvel's X-Men Aren't Humans

Ever since their introduction to the Marvel Universe in 1963, the X-Men have always had to deal with questions about their humanity. While their enemies will stop at nothing to cast them as monsters, the team continues to fight for a world where they are treated just like humans. Of course, that's just a moral on a comic book page; in the real world, it's in Marvel's best financial interest that the X-Men not be considered humans. In fact, they even went to court over it.

According to the podcast Radiolab, the question over the X-Men's heritage began in 1993, when international trade lawyers Sherry Singer and Indie Singh found an interesting provision in a book of federal tariff classifications. It turns out a "doll" can only be a representation of a human being, like a Barbie or Ken doll. A "toy," on the other hand, includes anything else—a robot, monster, demon, etc. Normally this would be nothing more than a technicality, but it turns out there's a marked difference between a doll and a toy when it comes to taxes. When a company imports a doll to sell in the U.S., they are taxed at 12 percent, while toys stand at 6.8 percent. There's no concrete reasoning behind this, but Radiolab speculated that domestic doll manufacturers had something to do with it.

Singer and Singh knew this distinction could be a sizable financial benefit for their client, Marvel Entertainment, who had an ownership stake in ToyBiz at the time. For years, Marvel had been importing its action figures as dolls, despite the fact that the company's cavalcade of brightly colored characters could hardly be classified as human in most cases. The two lawyers went to the U.S. Customs and Border Protection headquarters in Washington, D.C. with a bag full of action figures to try and convince the government that Marvel wasn't importing humanlike dolls, but instead very non-human toys.

The legal battle raged on for a decade, with a judge looking at various Marvel figures (beyond just the X-Men) to decide whether or not individual characters were human or not. Everything from Beast's blue skin to Wolverine's claws and Kraven the Hunter's muscle-bound physique were scrutinized, with lawyers on both sides weighing in on the philosophical ramifications of being human. After all, ToyBiz argued, how can these action figures be human if they have "tentacles, claws, wings, or robotic limbs?"

Official court documents [PDF] from the case are just as surreal, often sounding like overly formal Comic-Con discussions:

"The figure of 'Kingpin' resembles a man in a suit carrying a staff. Nothing in the storyline indicates that Kingpin possesses superhuman powers. Yet, Kingpin is known to have exceedingly great strength (however 'naturally' achieved) and the figure itself has a large and stout body with a disproportionately small head and disproportionately large hands. As it is, the figure is designed to communicate the legendary and freakish nature of the character. Even though 'dolls' can be caricatures of human beings, the court is of the opinion that the freakishness of the figure’s appearance coupled with the fabled 'Spider-Man' storyline to which it belongs does not warrant a finding that the figure represents a human being."

In 2003, Singer and Singh convinced Judge Judith Barzilay that the Marvel characters aren't quite human enough to deserve the taxation of a doll, leading the court to declare, “They are more than (or different than) humans. These fabulous characters use their extraordinary and unnatural physical and psychic powers on the side of either good or evil. The figures’ shapes and features, as well as their costumes and accessories, are designed to communicate such powers."

For the entire Marvel Universe to be catalogued as "non-human" might ring false to some fans, but for X-Men fans in particular, it was downright insulting. Chuck Austen, who was writing Uncanny X-Men when the ruling came down in 2003, said his goal while writing the books was to show the team's humanity, and that mutants were simply "just another strand in the evolutionary chain." Obviously this ruling flies in the face of the themes Marvel spent decades crafting.

Marvel itself had to quell concerns from fans by releasing a statement that read, "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."

In the never-ending world of comics, the X-Men will likely always be fighting for their rights to be treated as humans. But in the real world, the decision has already been made.

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Space Goat Publishing
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Comics
These Evil Dead 2 Comics Will Look Groovy on Your Bookshelf
Space Goat Publishing
Space Goat Publishing

Bruce Campbell has been quoted as saying the gallons of fake blood poured into his face during filming of the 1987 cult classic horror film Evil Dead 2: Dead by Dawn led to a week of red-tinged mucus leaking out of his nostrils. Fortunately, no Campbells were harmed in the making of two new comic collections from Space Goat Productions that are now being funded on Kickstarter. The Evil Dead 2 Omnibus features over 300 pages of stories set in the Necronomicon-plagued universe featured in numerous comic book miniseries; The Art of Evil Dead 2 reveals never-before-seen production art from both the comics and ancillary projects.

The campaign is the latest from Space Goat, the Bellingham, Washington-based company that’s made a cottage (or cabin) industry from products spinning out of the Sam Raimi-directed film, which is celebrating its 30th anniversary this year. In addition to the new collections, the publisher has also issued an Evil Dead 2 coloring book; a comic where Campbell’s demon-fighting hero, Ash Williams, encounters Adolf Hitler; and a forthcoming board game where players can navigate Deadite threats while shaking their head at Ash’s questionable competency. (No matter the iteration, he seems ill-equipped to deal with the threat of his own possessed and lopped-off hand.)

According to Space Goat publisher Shon Bury, licensing the Evil Dead 2 property from rights holders StudioCanal in 2015 has been a buoy in navigating the difficult waters of comic book publishing. (Even Marvel, which rakes in billions through its film franchises, struggles to sell more than 60,000 to 70,000 copies of its most popular monthly titles.) One day into its Kickstarter launch, the Evil Dead titles had reached 50 percent of their $20,000 funding goal.

“It’s definitely our flagship on the publishing side,” Bury tells Mental Floss. “The board game is our top seller in the Evil Dead category, and the coloring book sells really well. They’re our evergreen products.”

The cover to 'The Art of Evil Dead 2' from Space Goat Publishing
Space Goat Publishing

Exploring Ash’s adventures in other media comes with a few caveats. While Space Goat is free to explore the characters and situations portrayed in Evil Dead 2, incorporating ideas from the rest of the series (including 1993’s Army of Darkness or the Starz series Ash vs. Evil Dead) is generally off-limits. And while the StudioCanal rights include a likeness of Campbell, the actor has veto power over how he’s depicted on the page. “For some reason, he doesn’t like the dimple on his chin to be drawn,” Bury says. “But he’s very insistent that the scar on his face from the movie is always there.”

Other actors featured in the film—like Richard Domeier, the future home-shopping host who portrayed “Evil Ed”—may not have granted their likeness rights, but his Deadite character design is part of the deal. “You want to inoculate the owner or licensor of the rights,” Bury says. “So we submit drawings and they might say, ‘No, too close to the actor.’”

That development process is part of what makes up The Art of Evil Dead 2, one-half of Space Goat’s current Kickstarter project that follows a successful Evil Dead 2 board game launch in 2016. The campaigns, Bury says, help target Ash fans with material that might not get enough attention if it were released directly to retailers. “Kickstarter is basically social media. It’s direct engagement, our way of saying to fans, ‘Hey, you’re really going to like this.’”

Bury expects fans to be just as enthused about Evil Dead 2: The Doppelganger Wars, a limited series due for release in 2018 that sees Ash and sidekick Annie Knowby enter the mirror dimension glimpsed at in Evil Dead 2 to discover the true origins of both the demon-summoning Necronomicon and the cult surrounding it. A meeting with H.P. Lovecraft may also be on deck, along with other narratives that would carry the license through the end of the publisher’s current agreement with StudioCanal in late 2019.

Still to be decided: whether Ash will ever encounter the werewolves of The Howling, Space Goat’s latest horror license. “Those conversations have occurred,” Bury says. “It would be a natural. But it’s also challenging because the royalties [for the licenses] double.” 

Digital versions of The Art of Evil Dead 2 and the Evil Dead Omnibus will be available to backers pledging $20 beginning in December. Softcover, hardcover, and Necronomicon slipcase editions ($30 and up) ship in May 2018. The Kickstarter runs through November 25.

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Hulton Archive (left), Bruno Vincent (right) // Getty Images
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History
How Superman Helped Foil the KKK
Hulton Archive (left), Bruno Vincent (right) // Getty Images
Hulton Archive (left), Bruno Vincent (right) // Getty Images

The Klansmen were furious.

Dozens of them had congregated in a nondescript room in Atlanta, shaking cloaked heads at the worrisome news that their sect leader had just shared: An act of gross subterfuge had transpired over the airwaves. Millions of Americans had now become privy to their policies, their rankings, their closely guarded methods of organized hatred.

All of it fodder for some comic book radio show. Their mission had been compromised, sacrificed at the altar of popular culture. Kids, one Klansman sighed. His kids were in the streets playing Superman vs. the Klan. Some of them tied red towels around their necks; others pranced around in white sheets. Their struggle for racial purity had been reduced to a recess role play.

Stetson Kennedy listened, doing his best to give off irate body language. He scowled. He nodded. He railed.

The covert activist waited patiently for the Klan to settle down. When they did, he would call radio journalists Walter Winchell and Drew Pearson, offering the results of his infiltration into the group for public consumption.

He’d also contact Robert Maxwell, producer of the Superman radio serial. Maxwell, eager to aid the humanitarian mission of the Anti-Defamation League, would promptly insert the leaked information into his show’s scripts. In between fisticuffs, his cast would mock the KKK’s infrastructure, and the group’s loathsome attitudes would be rendered impotent by the juvenilia.

The Klan roared, demanding revenge on their traitor. “Show me the rat,” their leader said, “and I’ll show you some action.”

Kennedy cheered, just as they all did.

And when he returned home, his Klan robe would be traded for a cape.

The cover to the first issue of Superman
Hulton Archive/Getty Images

Kennedy, born in 1916, was an unlikely undercover operative. After a back injury kept him out of World War II, the Jacksonville, Florida native decided he wanted to combat anti-American forces on the home front. With Klan members alleged to have assaulted his family’s black maid when he was a child, the Klan—once again gathering steam in an era of segregation and racial divisiveness—was a favored target.

Having convinced a “Klavern” in Atlanta, Georgia that he shared their bigoted views, Kennedy donned the ominous attire of a Klansman, attended cross burnings, and covertly collected information about the group that he would then share with law enforcement and media. Radio journalist Drew Pearson would read the names and minutes of their meetings on air, exposing their guarded dialogues.

Revealing their closed-door sessions was a blow—one that Kennedy didn’t necessarily have to confine to nonfiction. In 1946, Maxwell, who produced the Superman radio serial broadcast around the country, embraced Kennedy’s idea to contribute to a narrative that had Superman scolding the racial divisiveness of the Klan and airing their dirty laundry to an enraptured audience.

“The law offices, state, county, FBI, House Un-American Activities Committee, they were all sympathetic with the Klan,” Kennedy said later. “The lawmen were, ideologically at least, close with the Klansmen. The court of public opinion was all that was left.”

Ostensibly aimed at children, Superman’s daily radio dramas were often broadcast to assembled nuclear families; one phone poll showed that 35 percent of its audience was composed of adults.

But regardless of whether parents listened, the activist believed the younger demographic was worth attending to. “Even back in the ’40s, they had kids in the Klan, little girls dressed up in Klan robes at the cross burnings," Kennedy said. "I have photos of an infant in a cradle with a complete Klan robe on. It seemed like a good place to do some educating.” 

In “Clan of the Fiery Cross,” a 16-part serial airing in June and July of 1946, Superman opposes an organized group of hatemongers who target one of Jimmy Olsen’s friends. Exploring their network, Clark Kent uncovers their secret meetings and policies before his alter ego socks the “Grand Scorpion” in the jaw. The idea, Kennedy wrote in his account of his work, The Klan Unmasked, was to made a mockery of their overblown vernacular.

When traveling, for example, Klansmen might identify one another by asking if they “knew Mr. Ayak,” an acronym for “Are You a Klansman?” Although Kennedy may not have actually shared their code words on air—a longstanding myth that was debunked in Rick Bowers’s 2012 book, Superman vs. the KKK—their histrionics were perfect for dramatization in the breathless structure of a radio drama. Given shape by actors and sound effects, all the clubhouse tropes of the Klan seemed exceedingly silly.

The cover to the first issue of Superman
Hulton Archive/Getty Images

As Kennedy continued to serve up Klan secrets to Superman, he watched as Klan morale dipped and membership enrollment ebbed. Desperate, the Klan tried calling for a boycott of Kellogg’s, a new sponsor of the show, but racial intolerance was no match for the appetites of post-World War II homes. Rice Krispies and Corn Flakes remained breakfast table staples, and Superman’s battles with the close-minded continued. Emboldened by his success against the Klan, Superman took aim at Communism, a favorite target of the show’s anti-Red star, Bud Collyer.

Kennedy would go on to burden the Klan using proof of uncollected tax liens, and eventually convinced the state of Georgia to revoke their national corporate charter.

Kennedy died in 2011 at the age of 94. While some of his accounts of subterfuge in the Klan later came under fire for being embellished, his bravery in swimming with the sharks of the organization is undeniable. So, too, was his wisdom in utilizing American iconography to suffocate prejudice. Fictional or not, Superman may have done more to stifle the Klan’s postwar momentum than many real people who merely stood by and watched.

Portions of this article were excerpted from Superman vs. Hollywood: How Fiendish Producers, Devious Directors, and Warring Writers Grounded an American Icon by Jake Rossen with permission from Chicago Review Press. Copyright (c) 2008. All Rights Reserved.

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