Ernie's not human? Does BERT know? (Interesting Judicial Comments)

As I slogged through a summary judgment brief involving fraudulent transfers of land, I took a break to read an opinion in a case I'd give my eye teeth to work on, if I knew what eye teeth were.

The case is the innocuously-titled "Toy Biz, Inc. v. US," and it's found at 248 F. Supp. 1234. It's a 2003 case in which a federal court was asked to decide, in four opinions, whether Wolverine and the other X-men are human.

Really.

The case involved a tariff classification that saw Customs trying to classify action figures being imported as "dolls," rather than "other toys," the difference being a whopping amount of tax. Dolls, under the relevant law, are toys that resemble human beings, which sounds like it might apply to an action figure of, say, Nightcrawler, but there's an exception to dolls under other toys, which removes from the dolls classification

[t]oys representing animals or non-human creatures even if possessing predominantly human physical characteristics (e.g.angels, robots, devils, monsters)

This is the stuff our government is up to when we're not watching it, you know: classifying monsters and dolls.

Customs argued that merely adding a claw or a robotic arm "fall[s] far short of transforming [these figures] into something other than the human beings which they represent," but the Court noted that first, Customs ought to have read more comic books:

Second, these Marvel characters are known in popular culture as "mutants." That fact further informs their classification. ... (Customs recognizing that some knowledge from popular culture is necessary to identify certain figures, such as angels, devils, monsters, as "non-human"). 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 example, "Storm" (a tall and thin figure with white mane-like hair and dark skin)...has a lightening bolt as an accessory, reflecting the character's power to summon storms at will. "Rictor" ...has a human appearance but comes with a built-in wheel in the back which when turned makes the figure vibrate and thus is designed to simulate Rictor's "power to generate earthquake-like vibrations." "Pyro" ...has a costume that, with two long hoses attached to it, is designed to aid the character's "mutant ability to control and shape flames.

So maybe a claw wouldn't keep you out of a Humans-Only club, but if you can control the weather or have a wheel in your back, we don't want your type here, buddy.

But while that is easy enough to decide: white-haired women with lighting bolts



are clearly not human, right? (Hot, but not human), what's harder to decide is whether a person who was a human but then got transformed by cosmic rays into, say, a blog of metal, is no longer human:

The court next turns to the more difficult classification of the action figures referred to as "Fantastic Four." The assortment... of the "Fantastic Four" action figures "Black Bolt," "Mole Man," "Terrax," "Mr. Fantastic," and "Silver Surfer." ...On their packaging, the characters are not referred to as "mutants" or are not known in popular culture as "mutants." They are, however, known to have extraordinary, "super-human" abilities.

"Mr. Fantastic" is the "leader of the superhuman quartet known as the Fantastic Four," .... The character can "stretch himself into almost any shape." Accordingly, the "Mr. Fantastic" figure has stretchable arms made of soft plastic.

"Black Bolt," despite resembling a human, has wings attached to its arms and is described as belonging to "Inhumans."

"Terrax" has a grey skin color signifying that the character's body is made of a "living stone-like substance."

"Silver Surfer," although once human, has been transformed by "the power cosmic," and the figure's entire body along with its surfboard is consequently metallic.

Accordingly, the court finds that the four "Fantastic Four" figures considered above do not represent human beings and are thus not classifiable as "dolls"...

The last figure in this series is truly a close call. "Mole Man" is described as both being human and having an "odd appearance,... extraordinary intelligence, cunning, and fighting prowess with his staff." The figure is stout and thick, has exaggerated troll-like features, wears a green outfit and cape, and comes with a staff and a small figure of a "humanoid" creature (yellow in skin with protruding white eyes) symbolizing the fact that the character uses small humanoid creatures to "do his bidding." Mole Man lives "within the Earth," and consistent with the character's subterranean nature, the figure has unusually pale skin and wears blue glasses. The character also "controls a legion of giant monsters."

Given the entire context of the figure's appearance and fantastic story, and the fact that it is part of a series where the characters are described as "super-human," the court finds that "Mole Man" is also not properly classifiable as a "doll" under the HTSUS and instead should be classified as an "other toy".

It didn't end there; the Court decided that even Spider-Man villains Kingpin and Craven weren't human,

What's really fascinating is about this case are two minor (?) notes, the first showing that along the way in the litigation, Marvel decided to agree that some humans are humans, and also, that the Court got to play with the action figures in question. From footnote 10:

On October 18, 2000, the parties entered into a Stipulation identifying all items at issue in this action. Later, with both parties' consent, 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," ...Moreover, the court has before it sufficient samples and pictures of the items in question which enable the rendition of a dispositive decision.

(Emphasis added.) And the other little-noted extra part is that in deciding that a guy who had four metallic robot arms grafted onto his body by a scientific accident is no longer human, the Court relied on an earlier decision finding that Ernie and Bert might not just be secretly gay married, but gay interspecies married, citing as follows:

Cf. Minnetonka Brands, Inc. v. United States, 24 CIT ___, ___, 110 F.Supp.2d 1020, 1029 n. 5 (2000) (finding that the containers in the shape of the well-recognized children's character "Ernie" is properly classifiable under HTSUS 9503.49.00 rather than as plastic bottles because "Ernie's cartoon-like figure, orange complexion, red button nose, and oval head [is] a sufficient basis for finding him a `nonhuman creature'").

That had to come as a surprise to Ernie, since Muppets don't think of themselves as Muppets.