In the mid-1990’s, Toy Biz, a subsidary of Marvel comics (purveoyers of all things X-Men, Spiderman, and Hulk, to name a few), brought a lawsuit against the U.S. Customs Office trying to save money on their action figure imports from China. At the time, there were tariffs in place which put higher import costs on “dolls” than on “toys.” Dolls were deemed to be any human-like figurine and received an import tariff of 12%, while toys were depictions of monsters and robots which were subject to a import tariff of 6.8%. Both tariffs have since been repealed

It seemed Customs was of the mind that the X-Men and other superhero action figures that Toy Biz sought to import from China were human and therefore dolls. According to Customs each X-Men hero had a “distinctive individual personality.” Some mutants were Russians, Japanese, black, white, women, even handicapped. Wolverine, the government insisted, was simply “a man with prosthetic hands.”

Not so, parried Toy Biz. 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?”

Ultimately, the judge ruled that the X-Men figurines were “nonhuman creatures.” 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.” End of story.

But that’s not the biggest fallout from the story — fans went ballastic. Since the X-Men’s inception in 1963, the argument whether mutants are human has played a major role in the plot of X-Men comics. Brian Wilkinson, editor of the online site X-Fan , said Marvel’s argument is appalling. “This is almost unthinkable,” he said. “Marvel’s superheroes 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, former 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.” As everyone knows, X-Men derive their power from a gene that normal humans lack, the X-Gene. Through the use of this device, writers have been explicating on antisemitism, prejudice, bigotry, and civil rights for years.

In the face of all the fanboy protests, 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.” Taking with one hand a giving back with another — now that’s good PR.

Toy Biz, Inc. v. US, 248 F. Supp. 2d 1234 (2003).

From the Wall Street Journal.