Marvel’s Mutants Have A New Villain… And It’s Marvel

While Marvel may be getting some grief over their support of SOPA (they’re owned by Disney, and people pirate comics, what did you really expect?) there were some other legal shenanigans happening behind the scenes. As some of you may already know, Marvel makes the majority of its money from merchandise, not comics, and some of that merchandise is in the form of toys. The point of contention comes from action figures. They’re produced overseas then imported here for sale. The United States charges Marvel taxes for all the toys they import, and these laws are very specific. For example, dolls are charged a hefty 12% tariff, whereas toys are charged a mere 6.8%. Why is this relevant? A couple of folks realized that the exact definition of a doll was anything that represented a human being, and many Marvel characters are not technically human and thus may be eligible for a lower tax rate. Their specific target? The mutants.

This led to Marvel, a company that every week publishes books about the struggle for mutants to be treated like people, arguing in a court of law that mutants are not in fact people. And they won. They more than won. The court ruled that any superhero character Marvel sells doesn’t qualify as human.

Just disgusting.

This was what perplexed me the most. Sure, I get that The Beast and Gambit are obvious monstrosities, but the entire Marvel U? I refuse to accept that Captain America isn’t human. Or Daredevil. Or Iron Fist. Iron Man and Doctor Doom are just dudes in suits. I believe the phrase is “throwing the baby out with the bathwater.”

And what about the other side of the street in DC? They have TONS of characters who ostensibly look human but could easily be argued are not. Any Kryptonian should count as non-human. Aquaman is half-Atlantean, just like Namor, a mutant. Booster Gold is from the future and thus may be evolved enough to not count as “human” in the modern sense. Suffice is to say the list is lengthy.

I get that this is all about money. That’s fine. But it does also kind set a weird precedent for what a “human” is.  I’m nervous for the day a company makes a doll that they try to import as a toy because the doll has sickle cell anemia, technically making her a mutant, thus making her not human. I know it’s a slippery slope argument, but the door seems wide open for this kind of rampant exploitation.

Genetically, it’s even more nuanced. I’ve tried to make sense of mutants as a species in my columns before and walked away almost more confused than when I started. I think I landed on the idea that mutants are a subspecies of Homo sapiens, just like us, thus in my estimation fully human and deserving of the rights and privileges associated with our species. Whether or not other species deserve some or all of those same rights is a worthwhile question, but beyond the scope of this column.

I see no difference.

Obviously there’s some genetic variation amongst a single species, especially one as populous, spread out, and diverse as ours. On average, we share about 99.5% of our genes with every other human being. That 0.5% difference accounts for every variation from the “norm” that exists, and there are some astounding variations. Extra limbs, chimeras (i.e. inconsistent DNA from cell-to-cell, sometimes from a resorbed twin), albinism, etc. If we followed suit with Marvel I wonder how many actual humans could be imported as something else. Kind of scary to think about. As I stressed in my previous columns, the concept of a species is a tough thing to define, it’s a legitimate debate in modern biology, and it seems like something legislation may have just plain botched.

I won’t go so far as to say I’m offended. I don’t have enough invested in toys, dolls, or import tariffs to really get that fired up over the ruling. But it does rub me the wrong way. There’s almost something more malicious about fighting for a world that just wants to make a quick buck off your personage as opposed to a world that hates and fears you. It’s enough to make me think siding with Magneto and the Brotherhood is the way to go. What was his line from the original movie? “We are the future, Charles, not them. They no longer matter.”

You can hear about the whole thing on the Radiolab podcast, where they talk to former X-Men film director Brian Singer, among others, about their thoughts on the ruling. It’s certainly the most interested I’ve been in tariff law since I left the import/export game after the pineapple fiasco in ’96. I couldn’t get them classified as ‘pines’ or ‘apples.’ Jerks.

What do you think? Are you outraged that Marvel has sold out their mutant constituency? Are you impressed by their maneuvering to save a few bucks? Hash it out in the comments.


Ryan Haupt thinks Jad Abumrad is a mutant with the power of audio editing. For a less ‘produced’ podcast, why not listen to Science…  sort of?


  1. The contradiction/irony makes for a good joke, but I really don’t think we should be worrying about the slippery slope of robbing action figures (“They’re not dolls!”) of their basic human rights. What we should be pondering is what American bureaucratic agency had the time/tax dollar funding to consider and eventually construct this slide-rule tax bracket dictated by doll classification.

  2. Obviously this is all about money – squeezing out a few more pennies of profit per unit like blood from a stone. Never mind that these non-human plastic representations cost pennies to make in the first place. There must be a >1000% markup on these to begin with, before retail. And no one has mentioned anything about the conditions or circumstances of the place where they are made (I envision a dingy warehouse factory full of little kids being ordered to “Work harder, work faster!”). It’s all about greed.

    It is also very hypocritical when compared to the message the whole X-men franchise has tried to spread.

    On the other hand, if I had two more arms and could play two guitars at the same time, I would be happy to be called a mutant!

  3. am i alone in think that this would make an awesome storyline in x-men? someone in the marvel universe has got to be making toys of these guys…

    • um, that should read “am i alone in *thinking…”

      we (by which i mean “i”) really need an edit button for these comments.

    • You are not alone. I thought about including a bit about how the Mutants might react since Marvel Comics exists inside the Marvel U. I figured Cyclops would just pull their licensing rights or something relatively tame.

    • i thought cyclops was more militant wavelength these days.

      seriously, though. the social implications argued by the legal precedent that they’re not human? that’s gold. and it’d be so damned meta as to make the universe fold in on itself. i’d read the hell out of that.

  4. So GIJoe’s are dolls but Green Lantern Action figures are toys? Hmmm.

  5. Roland Barthes just had an intertextual meltdown in his coffin.

  6. they’re niether toys nor dolls, they’re action figures, mom!

  7. i’m a bit more outraged by the fact that they can’t figure out a way to make a Captain America action figure in America, or the fact that Disney probably has 5 yr olds making the things in some horrible Asian sweatshop. (There’s an Avengers storyline worth fighting…if they can find the time to leave NYC)

    can’t read too much into the tariff thing. Bean counters will always rename and recategorize things if it means saving a penny or two per unit (which always equals millions). I don’t think logistics decisions of products have any reflection on the creative content.

  8. I have an old Chewbacca figure who’s now a quadraplegic. The ADA rules for renovating my apartment were draconian!

  9. “This led to Marvel, a company that every week publishes books about the struggle for mutants to be treated like people, arguing in a court of law that mutants are not in fact people.”

    Equivocation. The stories highlight treatment of sentient humanoid (usually) Marvel-styled “mutants” as it relates to similarly situated humans. The court case is about the taxation of containers of figures which either run afoul domestic statutory protection of human-like dolls or not as less-human toys. In other words, the case does nothing to answer “what is a human for the purposes of civil rights” but addresses “whether this inanimate figure invades the space of domestic dolls.” That doesn’t turn on in-story humanity, treatment, etc… merely whether the overall visual characteristics more closely resemble the industry protected or not. The determination of the entire licensed line was toys was not a declaration of inhumanity of Marvel characters on a story level, but one of administrative convenience… you tax by the container and so long as Marvel could prove the container was classified wrong with enough examples, they win.

    Highly technical, scientific, philosophical, etc. definitions and debates about what is “human” aren’t legally relevant. The oft quoted case is Nix v. Hedden (whether tomatoes constituted fruit for the purposes of avoiding vegetable taxation), where the basic rule is that functional lay usage of words control (because that’s what law makers and abiders are) and if more technical definitions are required, then the drafters can include it in the statute. So in-story, taxonomic, philosophical, etc. definitions of “human” are no more relevant than the botanical definition of “fruit”… instead, the definition that most serves the common understanding and function of the statute is applied (so culinary / common usage of tomato as veg; characteristics which makes a figure a human doll which would negatively impact the domestic industry being protected vs visual characteristics which make the figure more like other toy lines which don’t directly compete with the protected industry).

    Bottom line: Saying the intent or outcome of this case has any impact on the civil rights / classification / or moral treatment of sentient beings is like saying the outcome of Nix warped all of botany, taxonomy, and science… that’s not the scope of either case and they don’t set any kind of relevant precedent.

    • I think was just a fanciful extrapolation of the idea posited in the section you quoted.

    • This is a very long comment that seems very serious about my attempted light-hearted invitation to discussion but here’s what I’m getting from you: facts don’t matter when it comes to law. In which case I think we agree. 😉

    • Nah, I’m saying “The facts don’t matter when it comes to reporting.” You discuss genetics, civil rights, and outrage but I’m saying none of those are relevant to this case. For example:

      “The court ruled that any superhero character Marvel sells doesn’t qualify as human. / Just disgusting. / This was what perplexed me the most. Sure, I get that The Beast and Gambit are obvious monstrosities, but the entire Marvel U? I refuse to accept that Captain America isn’t human.”

      Except that’s not the ruling! This was a retroactive tax case deeming everything in the Toy Biz containers was over-taxed as human dolls instead of toys, Marvel met their burden by proving many of the items were visually toys, then as a matter of administration the containers were deemed toys… once the burden was on the State, parsing each figure and fighting classification item by item wasn’t in the government’s interest. The ruling does not deem Captain America as inhuman henceforth and forever more… just that any other figures that happened to be in the same containers as the ones declared toys as also toys for the sake of easily reimbursing the tax refund.

    • You take everything very literally, don’t you?

    • He says, “But it does also kind set a weird precedent for what a ‘human’ is.”
      I’m saying, “No, it doesn’t.”

      I’m not sure where the literal interpretation of anything enters the picture. The article ends with an invitation to share what we think… this is what I think: A statutory tax classification case no more undermines the future civil rights of sentient beings than taxing a tomato as a vegetable unravels scientific classification.

    • I think you missed the part where this whole thing is obviously in jest. That’s where the literal interpretation comes in.

    • No, I got that. Certainly from the original podcast where it’s a sly smirk at the case. But I don’t see how Ryan parsing the case through genetics, taxonomy, story, & ethics, and what not in jest and me doing it legally has anything to do with literal interpretation. Ryan took the legal story with the pop-culture wink and parsed it with science, I took the questions raised and parsed it back through the law. Literal interpretation has no bearing.

    • He’s being facetious with the facts, whereas you are not. There’s the difference.

    • I’m not writing an entertainment piece so why does my analysis- or indeed my reply- need to be funny?

      Facts aside, Ryan’s genetics and taxonomy analysis was straight-faced, thus my legal analysis was too. It has no bearing on literal interpretation or not.

      The only time I engage his “facts” are when they affect my analysis, such as incorrectly stating what the ruling was or things like “[defining a species] seems like something legislation may have just plain botched.” If literal interpretation was the issue then I would have legally parsed the pineapple joke.

    • First of all, I too was struggling at first with if this article was intended to be funny or serious or a combination of. It had a weird tone and these days you never know what the next moon bat is going to take seriously and be outraged by.

      Also, whether intentional or not I think DrAwkward’s post were interesting, educated, and made the original article more funny by taking everything to the next level!

    • I never know whether I’m being funny or serious either. Regardless, I have a hard time taking legality that ignores facts seriously, it’s a character flaw to be sure. Science 4 life.

    • Thanks Burritoclock, but I know the article isn’t serious… that’s the essence of the source material- NPR juxtaposing real-world actions and fictional intentions- but at the same time all the surrounding talk and cross-posting of the podcast has been about those winking non-legal humanity questions raised but NOT the actual case… so my analysis is meant to bring it back to the original case and provide insight into that.

      Conor’s essentially saying, “Ryan’s positions aren’t real, why the legal analysis unless you couldn’t tell they weren’t real (jokes/non-literal)?” I’m saying, “Marvel ‘mutants’ aren’t real, why the scientific analysis unless reality is irrelevant? Analysis is independent of perceived reality.” I can- and do- perceive the article as farcical, but it doesn’t stop applied analysis. You could say, “Why legally parse a joke? That’s out of scope!” But then, “Why scientifically parse a legal case jokingly?” Scope is not a limitation on analysis.

      In any case, I’m glad you enjoyed the analysis.

    • It’s hard to take science seriously when it complicates a matter rather than acts as a useful tool. As Ryan illustrates:

      “I’m nervous for the day a company makes a doll that they try to import as a toy because the doll has sickle cell anemia, technically making her a mutant, thus making her not human.”

      That would be the result IF science, technical taxonomies of mutant and inhumanity, and in-story distinctions mattered legally. Rather, instead of complicating the taxation of a figure by needing to know its back story and “scientific” classification of a fictional entity while worrying about the greater philosophical implications, judges can simply LOOK at the figure while keeping in mind the interests behind the statute. A functional approach that gets to the point and doesn’t bleed messy precedent.

      Science is a tool and meant to deal with repeatable / provable phenomena… even if it was relevant to toy taxation, it wouldn’t help us in dealing with hypothetical beings like Martha, Danger, Krakoa, or GLaDOS (whose “facts” can literally be retconned, like all Ultimate Marvel Mutants have been!)… there, philosophy is more useful, but not by much when, ultimately, you’re just trying to figure out the tariff on a container of figures. When your “facts” are fiction it isn’t science or useful.

    • I’m not sure you know what science is.

    • I’m not sure he knows what the phrase “raining on the parade” means either.

  10. there is something that makes me uncomfortable “humanizing” fictional characters to this point where we are bringing them into real world conversations with humanity and civil rights issues being mentioned. I dunno..its one thing if those are plot points in a story, but to turn it into a reality conversation….the whole sickle cell slippery slope line…that got to me. I dunno…this is very weird to me.

  11. hey, what do you guys think of that bkv cover with the boob?

  12. mutants should incorporate, since corporations are now people.

    and everyone is missing the real point here, why are dolls carrying a larger share of the tax burden anyway. It seems to like typical liberal bullshit, tax the people but not the animals, cars, etc. i call for doll tax reform.

    without Barbie its only a broken dream house.

    • 1) love the idea for mutant corporate personhood

      2) dolls are taxed higher because there was a larger domestic doll production sector, thus they had more to lose from doll production overseas

    • Hopefully the republicans take back the government and there’ll be no need for tariffs on foreign made goods, there would be no need for outsourcing if we would simply work for slave wages, what is wrong with these liberal moonbats????

  13. All that extra money and they still charge $3.99 for new digital comics! Bastards!

  14. I’m stuck wondering why dolls and toys command different tariff rates

  15. I <3 Radiolab.