Customs duties for goods imported to the United States were determined by the Tariff Schedules of the United States (TSUS) until 1989, when this document was replaced by the Harmonized Tariff Schedules of the United States (HTSUS). Under the HTSUS there was a distinction between two types of action figures: “dolls representing only human beings,”^[2] and “toys representing animals or non-human creatures (for example, robots and monsters).”^[3]

When Toy Biz v. United States reached Judge Barzilay in 2003, nonhumans and even part-humans of various kinds (half-humans, ex-humans, etc.) had less than complete personhood under U.S. federal law as well as in many states. 

Largely because they had in the past century suffered a disproportionate number of alien invasions, demonic incursions, and similar emergencies (especially from 1939 on), the state of New York was especially severe on this topic. For example, ghosts were unable to give testimony in a New York court until 2004^[a] and could be subjected to no-notice exorvictions until 2010. From 1966 to 2003, the “unjustified killing” of a nonhuman extraterrestrial was considered a misdemeanor under Executive Order No. 38, which also gave defendants considerable latitude with which to justify their actions.^[b]

The United States Court of International Trade is seated in New York City. 

In order to recoup duties paid to the Customs Service, Toy Biz sought to establish that various plastic figures imported from Symkaria in the mid-1990s were toys rather than dolls. By the time that Toy Biz v. United States reached Judge Barzilay, the case had passed three times by the bench of Judge Delissa Ridgway, where Toy Biz v. United States was designated as a test case in order to establish a precedent for similar tariff disputes. Initially, there were four types of product in dispute: (1) figurines which either were made or appeared to be made of metal, (2) figurines that operated as both action figures and small slide projectors, (3) other action figures, all of which depicted mutants, and (4) a 10.5-inch figurine called “Jumpsie” and various accessories. 

Ridgway’s first opinion, issued in 2000, primarily established that a quick summary judgment was impossible due to a disagreement on crucial facts of the matter, such as whether certain figurines depicted humans. The Customs Office argued that “doll” had been defined broadly in the past and that “courts have recognized that dolls need not include all the anatomical elements of a real person.” Toy Biz did not dispute these precedents but believed that they had been rendered obsolete by the new rules of the HTSUS, under which any degree of non-humanity meant that a figurine was not human, even if such a “hybrid figure” was mostly human. 

In 2001, the deliberations mostly concerned a line of metal figurines called the “Steel Mutants” and plastic figurines which represented persons who were made of metal or wore metal armor, such as Iron Man. Toy Biz described these as modern-day variants of “tin soldiers and the like,” which would permit them to classify the figurines as toys regardless of whether they represented human beings. Ridgway ruled against them, referring to the case of Hasbro Indus., Inc. v. United States (1989),^[4] which classified G. I. Joe figurines as dolls because the characters they represented each had “a distinctive physical appearance and personality profile,” were generally played with in small groups rather than in the mass, anonymous quantities of a tin soldier army, and were poseable and manipulable where the archetypal tin soldier was a stiff, molded figurine without moving parts. Although Toy Biz felt that Hasbro v. United States should be ignored because it was decided under the TSUS rather than HTSUS, Ridgway found that on this matter there was no substantive difference between the HTSUS and its predecessor, making Hasbro v. United States a legitimate and useful precedent. 

Ridgway’s third and final opinion, issued in 2002, chiefly concerned the “Projector” figurines, described as “colorful, poseable seven-and-one-half-inch plastic figures, with miniature slide projectors in their cavities.” Toy Biz argued that, setting aside whether figurines which depicted mutants also and at the same time depicted humans, the Projectors should be classified as “other toys” or as “toy sets” because each contained a non-toy component (the slide projector) and was packaged with three film disks. The Customs Office determined that each Projector was a “composite figurine” composed of a figurine (to be considered a doll) and its projector, plus accessories (the film disks), and Toy Biz responded that the Projectors were “more than” dolls and therefore non-dolls (reminiscent of their later, more widely-known argument that mutants, being “more than” humans, were non-human). 

Customs also maintained that, seeing as dolls could contain mechanisms that moved, produced a voice, or operated in other ways, and seeing as some of the film disks portrayed speech bubbles, the slide projector was a mechanism for producing (a kind of) speech and therefore (a kind of) voice. Ridgway disagreed, pointing out that the slide projectors visually portrayed speech but did not actually produce sound, and also held that “it is apparent that the ‘other mechanisms’ referred to in the Explanatory Notes [of the HTSUS] were mechanisms that contribute to a figure’s lifelike simulation,” and the Projectors did not so contribute because “humans do not project film images from their chest.” Therefore, they were “composite figures” whose nature was ultimately to be decided according to their “essential character” as either human or non-human beings, but Ridgway determined that “additional evidence and arguments [were] needed to decide this issue.”

The “other action figures” received the greatest scrutiny, both in the court and out of it. All of these figurines represented mutants (specifically, members of the “X-Men” team, as depicted in then-unlicensed stories published by Marvel Comics Group), and Toy Biz desired that mutants be designated as nonhuman in order that their action figures be designated as toys rather than dolls.

In the prior case of Hasbro Indus., Inc. v. United States, the United States Court of Appeals found that the word doll was best interpreted as “a representation of a human being used as a child’s plaything.” For this reason, Toy Biz argued that, in order to be classifiable as a “doll,” the “item must represent only, i.e. exclusively, a human being,” ruling out, for instance, the supervillain Sauron (a human-pteranodon hybrid) as a human being. Without such an exclusive definition, chimpanzees and even bananas might be considered to be humans on the basis that they share some DNA with humans. Further, the allegedly non-human characteristics of the figures at issue were “immediately apparent to the casual observer.” In other words, though mutants did not lack humanity, they were not entirely human, and therefore those action figures that depicted mutants necessarily depicted nonhumans.

The Customs Office emphasized the humanness of the figures, observing that so far “judicial decisions interpreting the term ‘dolls,’ without exception, have broadly construed the scope of that term to include a broad range of physical characteristics and a wide variety of uses,” and that the figures in question possessed “the appearance of human beings,” were “noticeably lifelike and constructed in a manner which permits an impressive range of human movement,” were “dressed as human beings and equipped with weapons and accessories in a manner associated with actual warfare,” and possessed “such human characteristics as gender, race, physical handicap, and nationality.” Customs pointed out, for example, that “Rogue” and “Bishop” were respectively identifiable as “a female action figure” and “a black man,” and that the “Wolverine” figure simply represented “a man with prosthetic hands.”^[c]

In response, Toy Biz argued that, while the Customs Office was justified in making a test of this nature under the previous Tariff Schedules of the United States, that test had been superseded by the more recent Harmonized Tariff Schedule:

“The tariff classification of figures with both human and non-human features shifted when the Harmonized Tariff Schedule came into force. Previously, such figures would be classified as dolls unless they were predominantly non-human in nature, but the HTSUS reversed this: under the HTSUS, figures possessing both human and non-human characteristics are classified under the provision for toys, even when the figures have predominantly human characteristics. In short, the test for doll versus toy is not whether a particular figure is more human or more non-human. Rather, a figure with any non-human features must be classified as a toy.”

To this, Customs claimed that no mutant power can be nonhuman, because mutants were humans and therefore mutant powers were human powers. Tetrachromacy and innate immunity to HIV are both beyond the capabilities of normal humans, but genetic mutations conferred them to some individuals, who were, despite those mutations, considered human. They pointed to Toy Biz’s 1992 catalog — which described mutants as “people born with ‘x-tra’ power and abilities beyond those of ordinary humans” — as evidence that Toy Biz themselves recognized the humanity of mutant figures when it was not inconvenient for them to do so. Customs also held that, even should mutants be considered nonhuman, the toy classification was inappropriate where a casual observer would need to “guess as to whether a feature that appears to be non-human is, in actuality, such a feature.”

On January 3, 2003, Judge Judith Barzilay ruled largely in favor of the plaintiffs, granting Toy Biz reimbursement for import taxes paid on previous toys. The ruling came after an examination of opposing legal briefs (including amicus curiae briefs submitted by the Xavier Institute and other parties), witness testimony, and more than sixty action figures. As Barzilay wrote in her decision:

A “mutant” is an “individual which has arisen by or undergone mutation, or which carries a mutant gene.” Thus, a “mutant” is someone (possibly originally belonging to the human species) who has undergone a hereditary change and become something other than human. Since HTSUS subheading 9503-39.00 leaves open the set of those objects that can be classified as “toys representing animals or non-human creatures (for example, robots and monsters),” it is clear that the intention was to include other categories of non-human creatures that are not necessarily enumerated in the subheading. Thus, to include “mutants” under this subheading is perfectly appropriate.

In her decision, Barzilay referred to a clarifying annotation of the HTSUS as evidence that the United States recognized it was possible that something “might well resemble a human being and not be one”^{[d] [5]} and wrote that, while mutants can “use their extraordinary and unnatural powers on the side of either good or evil,” they are nevertheless “something other than human.” Because the Projectors all depicted mutants, they too were to be classified as toys.

On the matter of certain figures (“Iron Man” and others), however, Barzilay ruled that the figures were fundamentally different in design and nature from the “tin soldiers” referenced by the Harmonized Tariff Schedule. Barzilay also ruled that, while metal is “not one of the materials from which dolls are ordinarily made,” the wording of the text itself — “ordinarily” — made clear that exceptions were possible and that this alone was therefore an insufficient basis on which to classify a human-representing figure as a toy rather than a doll, though it was irrelevant in the majority of cases Barzilay considered only a few of the action figures (such as the “Iron Man” figurine) to depict humans.

Barzilay also ruled that the “Jumpsie” figurine was a doll, and subject to the full 12 percent tariff.

The case had attracted little attention in previous years, but its outcome had great symbolic value. Barzilay’s ruling was widely criticized, and Toy Biz v. United States is often cited as one of the worst Court of International Trade decisions of all time.^{[6] [7]} “This is almost unthinkable,” wrote mutant rights activist Brian Wilkinson. “Mutants are 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?”^[8]

Comparisons were drawn to the struggles then facing the LGBT community. Erik Dussere, at that time teaching at Rutgers University, explained, “The mutant issue is a queer issue. Homosexuality, like mutancy, is a hidden difference — gays walk among us, and we never know who might be one. It is a condition that manifests itself in adolescence, and when it does, it frequently causes the confused and scared person to be ostracized from both community and family, who are just as quick to call the homosexual ‘inhuman’ and ‘unnatural’ as the mutant.”^[9]

Though the case only directly affected tariff law, there was widespread concern (or interest) in broader implications. Writing in Genomics Law Report, Damien Fleeting warned, “Though mutants are indeed different to humans, in that mutated genes have given them abilities that most people cannot use, the fact is that they are still just mutations. A human who is born with an extra finger, albinoism, [sic] or a superfluous third nipple is still accorded the status of human. [...] If we go down this road, I fear we have the risk of some kind of segregation becoming mandatory, leading to an atmosphere of intolerance and prejudice not seen on such a scale for many years.”^[10]

In a symposium held at the Catholic University of America, law professor William R. Casto asked, “Are the offspring of cloning or DNA experimentation human beings with the rights of human beings? Is a scientifically created clone or genetically altered mutant a human being with the right to marry a human being? One court has already held that mutants are not human beings. Tomorrow, which other courts, and who else besides mutants?”^[11]

Particular attention was also given to Barzilay’s decision regarding the “Mole Man” figure based on Harvey Elder, which she described as “having an odd appearance… stout and thick, with exaggerated troll-like features [and] unusually pale skin,” in short “a caricature of a human being.” These features, in combination with his “radar sense,” were sufficient grounds for Barzilay to consider him non-human. Elder, who does not have an X-Gene and prefers to describe his “radar sense” as an fundamentally ordinary albeit well-developed case of human echolocation, later sued Barzilay for defamation.

For all that the Customs Service might be considered to have acted in the interest of greater tariff revenues than mutant rights, their efforts did not go unnoticed by the mutant community. In the aftermath of this case, the Customs Service was one of two U.S. government agencies perceived to be sympathetic to mutant issues,^[e] and in the following years many mutants sought work with the Customs Service. As of 2022, more than eight hundred U.S. Customs and Border Protection employees self-report as mutants (out of a total workforce of 60,000), a figure that is disproportionate to their presence in the national population by more than fifteen times.^[12]

Marvel Comics Group attempted to forestall concerns, stating in a press release that “Mutants are living, breathing human beings — but humans who have extraordinary abilities. A decision that the people represented by these action figures do have ‘nonhuman’ characteristics proves that mutants have special, out-of-this-world powers.”^[13]

In response, Luke Geddes and Jason Serafino wrote:

What is of note in this particular announcement is that it unintentionally espouses a philosophy akin to that possessed by a Friend of Humanity, who may argue that though many mutants are human-looking enough to pass cursory inspection, their mutations dehumanize or animalize them, and so they must be cured or extinguished.

Whether mutants are misunderstood because they are better or worse than humans is practically irrelevant: they are biologically different and biologically segregated. Certainly this was a matter of concern prior to the case of Toy Biz v. United States, but it took a line of toys for Marvel, in its backhanded way, to acknowledge this. So long as it is in Marvel’s best financial interest that mutants not be considered humans, they will not seriously consider anything to the contrary; and should the winds change and dolls be subjected to lower tariffs than other toys, you can be sure that Marvel and its subsidiaries will argue fervently for the humanity of mutants.

It’s no wonder that the case received the attention that it did; Judge Barzilay’s ruling, reinforced by Marvel’s press release, not only dehumanizes mutants, but more so, it by proxy threatens the sense of shared humanity that is possessed by mutants and non-mutants alike. Marvel’s actions are a betrayal tantamount to the mutant terrorist Magneto’s undermining of the X-Men’s prosocial goodwill efforts. So long as it is in Marvel’s best financial interest that mutants not be considered fully human, they will never seriously consider anything to the contrary.

The intense reaction of many people can be summarized thusly (echoing Brian Wilkinson): If mutants are inhuman, then what of you and me?”^[14]

This viewpoint was echoed by opposition within Toy Biz and Marvel Comics Group. Several employees quit their jobs, including Chuck Austen — at that time writing for one of Marvel’s unlicensed “X-Men” series — and illustrator Steve Rogers.^[f] Austen said at the time, “I have worked hard for the past year to emphasize the humanity of mutants, to show that they are just another strand in the evolutionary chain.”

Superhero teams like the Avengers and the Fantastic Four ceased to consult on and individually endorse each issue of their respective series, though Marvel retained exclusive rights to their adventures and likenesses up through 2008 and 2010 respectively. One member of the Avengers, Hawkeye, ended negotiations that were underway to renew a personal history license, resulting in the 2004 cancellation of a new “Hawkeye” comic initially launched in 2003. Until a new agreement was reached in 2015, Marvel Comics Group only portrayed Hawkeye in connection with the Avengers^[g] and ApeX Publishing (who held the Hawkeye license from 2005 to 2009) did not reference the Avengers or any of their activities in their “Hawkeye” line.

These events may have contributed to Allen Lipson’s decision to retire as Chief Executive Officer of Marvel Comics Group, the removal of Isaac Perlmutter as vice chairman, and the end of Bill Jemas’ short-lived run as executive vice president, as well as Marvel’s decision to pay Toy Biz $15 million in penalties in order to prematurely terminate their toy licensing agreement.^[h] Subsequent negotiations over master likeness licenses have generally included a so-called “corporate morals” clause that would permit the licensors to unilaterally close out their contracts if Marvel Comics Group again “acted without dignity and integrity, or in such a manner that the reputation of our foundation would be tarnished,” as put by the Fantastic Four’s contract. Additionally, Marvel soon reached out to the X-Men and even vigilantes such as Spider-Man in order to negotiate master likeness licenses, storyline reviews, and endorsements. Notwithstanding the previous efforts of writers like Austen to render their subjects in a good light, this led to an immediate and marked change in the portrayal of these groups and individuals (not just more positive, but also more nuanced).^{[citation needed]}

On matters of interpretation of HTSUS, and particularly the interpretation of differences between the TSUS and HTSUS, Toy Biz, Inc. v. United States has been cited on more than two dozen occasions, including Donovan Robotics v. United States, Oscorp Corp. v. United States, and Intercontinental Marble Corp. v. United States.

The arguments made in Toy Biz, Inc. v. United States were cited as an influence on early drafts of the Genetic Information Nondiscrimination Act of 2009 (GINA), which strictly clarified that mutant humans and others who were descended from humans were themselves fully and completely human, without consideration of or declaration regarding their degree of humanity. GINA’s so-called “one-drop rule” would have great ramifications on issues as wide-ranging as abortion, genetic research, and extraterrestrial immigration, and conclusively settled “mutanthood” as a protected status similar to citizenship, race, and species.

In turn, this led to the U.S. Supreme Court’s 2010 ruling on the unconstitutionality of the Mutant Registration Act.

In 2007, the Harmonized Tariff Schedule was amended to eliminate the distinction between dolls and other toys, which are now categorized under the heading 9503.00.00 as “dolls, other toys.”

a. ^{[^]} See New York v. Newton , which effected a change in this regard. 

b. ^{[^]}  The Morani are an alien species from the Andromeda Galaxy who learned how to harness the energy of their blood cells in order to produce bioelectricity. See Morani Invasion of New York (1966) for more information on their original attack and its effect on New York state laws, including the so-called Morani Extermination Order. 

c. ^{[^]} Contrary to the statement made by Customs, Wolverine does not have “prosthetic hands.”

d. ^{[^]} Barzilay’s full exegesis of the note reads, “A figure which is predominantly human but which has a single obvious mutant feature might well resemble a human being but would not represent one, and thus would be classified as a toy. Likewise, a shapeshifting Skrull in the guise of a human being would nevertheless not be considered to be one.” 

e. ^{[^]} The other agency being the National Oceanic and Atmospheric Administration.

f. ^{[^]} Better known for other work. 

g. ^{[^]} Prudence being the better half of valor, Avengers comics of the time played safe by either removing Hawkeye from storylines, relegating him to a non-speaking background role, or ensuring that another Avengers team member was present in any panel that featured Hawkeye. This latter practice, though informal, was called the “Quesada Rule” after Joseph Quesada, at that time Marvel’s editor-in-chief. 

h. ^{[^]} Largely due to their loss of the license, Toy Biz shut down in 2007.

1. ^{[^]} "Toy Biz, Inc. v. United States, 248 F. Supp. 2d 1234" . casetext.com. Retrieved 2023-11-30.
2. ^{[^]} 19 U.S.C. 1202 (Harmonized Tariff Schedule of the United States ) § 9502.  
3. ^{[^]} 19 U.S.C. 1202 (Harmonized Tariff Schedule of the United States ) § 9503.
4. ^{[^]} "Hasbro Industries, Inc. v. U.S., 879 F.2d 838" . casetext.com. Retrieved 2023-11-30.
5. ^{[^]} SLIP OP. 03-2. Court No. 96-10-02291. Explanatory Note 95.03(A)(1).
6. ^{[^]} Sergent, Chrome (2020). A republic, if you can keep it (First edition ed.). New York: Crest Publications.  
7. ^{[^]} Chemerinsky, Erwin. (2015). The case against the Court of International Trade (1. publ ed). New York: Corsair Cobblepot. 
8. ^{[^]} Street Journal, Neil King Jr Staff Reporter of The Wall (2003-01-20). "Public outcry as judge decides mutants aren’t human."  Wall Street Journal. ISSN 0099-9660. Retrieved February 2, 2012. 
9. ^{[^]} Dussere, Erik (2000-07-12). "The queer world of the X-Men"  Salon. Retrieved April 4, 2012. 
10. ^{[^]} Fleeting, Damien (2003). "U.S. Federal Court Rules Mutants are Not Humans"  Genomics Law Report. Retrieved January 13, 2014. 
11. ^{[^]} Casto, William R. (2005) "Our Unwritten Constitution and Proposals for a Same-Sex Marriage Amendment." 38 Creighton L. Rev. 271. 
12. ^{[^]} Stats and summaries. U.S. Customs and Border Protection. (n.d.). https://www.cbp.gov/newsroom/stats . Retrieved August 13, 2022. 
13. ^{[^]} Brady, Eddie K. "A judge decides: beast or man?" . Tampa Bay Times. Retrieved February 2, 2012. 
14. ^{[^]} Geddes, Luke (2010) "Mutants Meet an Insurmountable Foe: Why a U.S. Federal Court Ruled That Mutants Aren't Human," SPECS journal of law: Vol. 3, Article 47. Available at: https://scholarship.rollins.edu/specs/vol3/iss1/47 .

• TOY BIZ, INC., Plaintiff, v. UNITED STATES, Defendant. (United States Court of International Trade. November 28, 2000). 
• TOY BIZ, INC., Plaintiff, v. UNITED STATES, Defendant. (United States Court of International Trade. January 26, 2001).
• TOY BIZ, INC., Plaintiff, v. UNITED STATES, Defendant. (United States Court of International Trade. July 30, 2002). 
• TOY BIZ, INC., Plaintiff, v. UNITED STATES, Defendant. (United States Court of International Trade. January 3, 2003).