The mutants of X-Men are people. Aren’t they?

The first X-Men Marvel Comic was published in 1963. Featuring the paraplegic telepath Charles Xavier and five awkward teenagers with uncanny abilities, the original series about “the strangest heroes of all” endured until issue #66 was published in March 1970. Some of my favorite X-Men characters—Wolverine and Storm—weren’t introduced until the series was resurrected in 1975. Since then it has grown into its own franchise with blockbuster films. And toys. Or are they dolls?

Toy or doll is an important distinction, at least in the world of taxes.

In 1993, international trade lawyers Sherry Singer and Indie Singh noticed that “dolls” and “toys” were classified differently in their big book of tariff classifications. More importantly, “dolls” were subject to a higher tariff than “toys”. Singer and Singh realized that this distinction pertained to the activities of one of their clients, Marvel Enterprises and Toy Biz, Inc. (now Marvel Entertainment, LLC).

At the time, Toy Biz, Inc. was importing from China a variety of action figures based on X-Men and other Marvel characters, such as Spider-Man and the Fantastic Four. These figures, classified as dolls, were “dutiable at 12% ad valorem.” Singh and Singer contended that they should instead be classified as toys, “dutiable at 6.8% ad valorem.” Marvel’s desire to save the 5.2% difference sparked a protracted legal battle.

The Final Summary Opinion from the US Court of International Trade (January 2003) quotes the Harmonized Tariff Schedule of the United States (HTSUS) classifications of dolls and toys:

  • “Dolls representing only human beings and parts and accessories thereof: Dolls whether or not dressed: Other: Not over 33 cm in height.”
  • “Toys representing animals or other non-human creatures (for example, robots and monsters) and parts and accessories thereof.”

The court was asked to determine the proper scope of the classification provisions of the HTSUS. It is fascinating to read the opinion, which delves into a veritable character study of the action figures at issue. Take, for example, its take on the X-Men:

“All these ‘X-Men’ (or ‘X-Force’) figures manifest human characteristics at varying degrees. Some clearly resemble human beings, some clearly not. Most are on the borderline in that they exhibit a mix of human and non-human characteristics, such as arms and legs alongside non-human features (for example, one of the more popular figures of the series ‘Wolverine’ has long, sharp-looking claws grafted onto his hands that come out from under his skin along with wolf-like hair and ears).

Whatever the degree is to which they resemble human beings, the court finds that these action figures do not represent human beings and are therefore not properly classifiable as “dolls” under HTSUS heading 9502. The court bases its finding on at least three observations.” 

The three observations are as follows:

  1. “Most of the figures at issue exhibit at least one non-human characteristic.”
  2. [T]hese Marvel characters are known in popular culture as ‘mutants’…. They are more than (or different then) humans.”
  3. “[T]he ‘X-Men’ figures are marketed and packaged as ‘mutants’ or ‘people born with ‘x-tra’ power.’ That they are denoted as such by the manufacturer or the importer lends further credence to the assertion that they represent creatures other than (or more than) human beings.”

Therefore, the court concludes, “If these figures are not ‘dolls’ under HTSUS heading 9502, then they must fall into the category of ‘other toys’ under HTSUS heading 9503.” In other words, they should be subject to the lower tariff rate for toys (6.8%) rather than the rate for dolls (12%).

I’m not much of a comic reader but I am a fan of many of the Marvel movies. I like the characters, which have always seemed very human to me in spite of their eccentricities. They’re trying to make the best play with the cards they’ve been dealt, and that can’t be easy. What kind of life would I have if I had Wolverine’s deadly claws or Cyclops’ optic blast eyes?

Now, because of taxes, I have to reconsider everything. That’s wacky.

I am indebted to Radiolab for their 2011 podcast on Mutant Rights, which inspired this post.

photo credit: Ani-com coverage: Hot Toys X-Men: Wolverine via photopin (license)