Are the X-Men Human? A Federal Court Says No

Thanks to Neal for alerting us to a recent episode of Radiolab, which discusses a real life legal issue involving Marvel characters, including the X-Men, the Fantastic Four, and Spider-Man (although the episode focuses on the X-Men).

In brief: Attorneys for a company that imported Marvel character action figures noticed that imported dolls were subject to a higher tax than toys, per the Harmonized Tariff Schedule.  More importantly, dolls were distinguished from toys by “representing only human beings and parts and accessories thereof.”  The company sued for a declaration that the action figures did not represent human beings and so should be classified as toys, subject to the significantly lower tax.  Ultimately the Court of International Trade agreed with the company and held that mutants, the Fantastic Four and related villains, and Spider-Man and related villains were all non-human.  Toy Biz, Inc. v. United States, 248 F.Supp.2d 1234 (Ct. Int’l Trade 2003).

The case actually went on for several years, and some earlier decisions in the case were also reported: Toy Biz, Inc. v. United States, 123 F.Supp.2d 646 (Ct. Int’l Trade 2000); Toy Biz, Inc. v. United States, 132 F.Supp.2d 17 (Ct. Int’l Trade 2001); Toy Biz, Inc. v. United States, 219 F.Supp.2d 1289 (Ct. Int’l Trade 2002).  The 2001 opinion shows that Toy Biz was not universally successful: a Silver Samurai figure was held to be a doll, for example.

A final note: the Harmonized Tariff Schedule has since been changed to eliminate the distinction between dolls and other toys, which are now in the same category.

Update: Thank to Stephen for alerting us to the related case of Kamar Int’l v. United States, 10 C.I.T. 658 (Ct. Int’l Trade 1986).  That case dealt with whether E.T. the Extraterrestrial dolls represented an “animate” object, which would result in a lower tax rate than for toys in general (the customs classifications have changed a lot over the years, apparently).   The Court of International Trade agreed with the plaintiff, despite the United States’ arguments that E.T. was a fictional alien and thus not an animate object.  The Court cited as precedent the classification of Star Wars toys as toy figures of animate objects because “as depicted in the movie Star Wars they are living beings endowed with animal life.”  Kamar, 10 C.I.T. at 661.

The Court’s analysis (and the analysis in the Marvel toy cases) shows that sometimes the courts have to look to the “subjective characteristics of mythical or fictitious characters” in order to classify them properly.  It’s almost too bad the distinction between human and non-human toys was abolished, otherwise somebody at Customs could get paid to “research the subjective characteristics of fictitious characters” (aka “read comic books and watch movies”).  Sounds like a pretty nice job to me!

13 responses to “Are the X-Men Human? A Federal Court Says No

  1. All the more reason to eliminate all tariffs, completely.

  2. Hi it’s Neal who forwarded the link. As the podcast implies, the irony here is that the X-Men, in the comics and movies, are trying to retain their connection to humanity and are caught between two forces which reject such a stance: anti-mutant prejudice on one side (eg Senator Kelly) and Magneto and his ideology of mutant superiority on the other. We all understand that Marvel wanted a lower tariff rate, but it’s still funny that the creators of the X-Men argued in court that they are not human when the X-Men themselves were often trying to prove, in the stories, that they were, essentially, still part of the human family.

  3. I listened to the Radio Lab story. From the way the tariff law was described, it sounded like ‘human’ was defined pretty narrowly and ‘human’ was not the same as ‘person’. For example, aliens and angles didn’t count as ‘human’.
    I do find the court rulings disturbing on a fundamental level and would love for someone to appeal the decision on the grounds that all intelligent beings deserve the legal protection of personhood (If they exist in the real world). To me, that makes so much more since than the religious extraneous trying to get fertilized eggs declared ‘human.’

    I am curious, were Supper Man action figures taxed as dolls?

  4. Congrats on being chosen for ABA Journal’s 2011 Annual top 100 law blogs!

  5. What an odd distinction… Based on that reasoning, under the old tariff law, DC’s Superman toys couldn’t be taxed at the doll rate because he’s an alien, and other DC characters with superpowers are ‘metahumans’ like Marvel’s Fantastic Four… but you would have no grounds to use the lower tariff for Batman or Iron Man, because they’re regular human beings. Now that there’s no distinction it doesn’t matter, but still, what a spurious argument.

  6. Pingback: Odd News: US Federal Court rules Mutants are not Humans « The Fleeting Geek

  7. This one bugs me a bit on the biological front. When a member of a species or a population within a species gains or loses traits (i.e., mutates), it does not cease to be part of the parent clade. Thus, the X-Men would still be human, just as birds are still dinosaurs and moths are still insects. One can distinguish the X-Men among humans, but one cannot distinguish them from humans.
    That said, the regularity and degree to which the X-Men gain beneficial mutations over detrimental ones is a bit ludicrous. 😉

  8. I love this issue, which is a great teaching example for tariff classification. We followed it with a moot court on whether Luke Skywalker and Han Sol are human. You can read the notes from my argument and the brief here ( As one comment noted above, the one of the problems is that the story become the species, meaning that Superman is non-human while Batman, Iron Man, Green Arrow, and others are human. On the Star Wars figures, I lost the argument because George Lucas, who is effectively God in the Star Wars universe, defined those characters as human.

  9. I can’t help but notice that in a footnote to the 2003 ruling it is mentioned that: “Plaintiff withdrew from the case the items “Daredevil,” “Invisible Woman,” “Punisher,” “U.S. Agent,” and “Peter Parker,” and Defendant agreed to classify the items “Beast,” “Bonebreaker,” “Cameron Hodge,” “Robot Wolverine,” and “Vulture” as “other toys,”.”

    Another footnote explains that: Customs classifying the actual “Spiderman” figure as “other toy” on the basis that “[t]he head of the figure is clearly non-human in appearance” covered with the well-known mask of “Spiderman”.”

    So the court never ruled on those classifications (I’m guessing ?), but it seems like IF it agreed with those stipulations then it classifies Spider-man in his costume as a non-human (or not representing an actual/ordinary human being) but Peter Parker (Spider-man not in costume) is a human (or rather represents an actual human being, perhaps Toby Maguire?).

    A particularly revealing example is the treatment of the Kingpin doll/action figure/”other toy” by the ruling:

    “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” 1253*1253 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.”

    Arguably what is at issue here is that Marvel’s mutant toys do not represent ACTUAL human beings, even though they (like the Kingpin toy) represent FICTIONAL human beings. No actual human has been or (probably) could be like Kingpin or Marvel’s mutants (who are perhaps more properly called saltations ) even if when we tell the story of Kingpin or Longshot or Wolverine we speak of those characters as humans.

  10. Pingback: First Ninja in Federal Court is GI Joe « NinjaLaw

  11. Pingback: X-Men Fiction meets Reality | Gears Of Research

  12. Pingback: “G.I. Joes’s a He-Man Toy — Not a Doll!”

Leave a Reply

Your email address will not be published. Required fields are marked *