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Footnote Comics: X-Statix, formerly X-Force
Written by Peter Milligan, art by Mike Allred and Darwyn Cooke. Published by Marvel Comics.
X-Statix #13-14
Panels from X-Force #116: Too controversial for the Comics Code Authority?
 
All art copyright Marvel Comics.
What is this comic about? (last updated July 9, 2003) (back to top)
The X-Statix, formerly known as X-Force, are a media-friendly team of mutants who have become celebrities in a world that would otherwise, as the saying goes, hate and fear them. They're self-centered and have silly powers, but they're famous, they have licensing deals, and they do occasionally fight villains instead of each other.
U-Go Girl sums up X-Force's purpose. From X-Force #116. |
One of the main characters is Mr. Sensitive/The Orphan (Guy Smith), who was in love with the now deceased U Go Girl (Edie Sawyer) and is now involved with Venus Dee Milo. Other members include The Anarchist (Tike Alicar), Dead Girl (real name unknown), Phat (Billy-Bob Reilly), The Vivisector (Myles Alfred), and Doop (a green, floating blob). Many members have died: Zeitgeist, Battering Ram, Sluk, La Nuit, Gin Genie, and Plazm all were both introduced and killed in X-Force #116; Bloke died in #118, and Santa Anna in #119. U Go Girl and The Spike died in #128.
This comic book has been controversial since the beginning of its run, which began in X-Force #116 and continued in X-Statix. Marvel Comics reportedly had problems with the Comics Code Authority over scenes in X-Force #116 graphically depicting the deaths of several main characters and suggesting group sex, and Marvel decided to release X-Force without the CCA's approval and later broke away completely from the CCA. For more on the code, see here.
| Panels from X-Force #116: Too controversial for the Comics Code Authority?
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The team renamed itself X-Statix over real-life legal issues reflected in the comic book itself. The new X-Statix then garnered even more notoriety for its upcoming "Di Another Day" storyline, which will feature Princess Diana as a mutant superhero returned from the grave. For more, see here.
| | Princess Diana returns in X-Statix #13
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X-Statix is printed monthly and is collected in trade paperbacks. The team's initial adventures as X-Force are collected in several trade paperbacks and are collected entirely in the hardcover X-Force: Famous, Mutant & Mortal.
How can Princess Diana appear in X-Statix? (last updated July 6, 2003) (back to top)
Princess Diana is returning from the grave in issues 13 through 17 of Marvel Comics' critically-acclaimed X-Statix, a comic-book series that many – including the New York Times and Entertainment Weekly – have praised for its skewering of modern media and pop culture.
Word of the storyline has sparked some bemusement and outrage. In any event, X-Statix writer Peter Milligan, who is British, defended the use of Princess Diana as a resurrected mutant super-hero as in keeping with the comic's cultural critique. "Clearly, Diana was made for X-Statix: someone famous for being famous. In the world of the X-Men, the mutants are feared and hated. In X-Statix, they have turned this around and made themselves stars – glamorous, rich and powerful. That seems, to me, to be pretty much what Diana did inside the royal family," Milligan wrote in the Guardian.
Besides the questions about media culture and celebrities, the storyline does raise an interesting legal question. Namely, how can Milligan and Marvel do this? They can do this under United States law because only the living can sue for libel, because Princess Diana was a public figure, and because they're telling a story and not merely using her for advertising purposes.
Libel Law and Fictional Depictions of Public Figures
Libel occurs when someone publishes a false and defamatory statement about a person, thus causing injury to the subject's reputation (slander is like libel but instead involves oral statements). Thus, to win a libel claim, a plaintiff must prove that the defendant made or published a statement of fact about him or her, and that it caused real damage to his or her reputation. United States law also protects statements about public figures like Princess Diana by requiring plaintiffs to prove that the defendant acted with "actual malice," that it knew the story was false or recklessly regarded the truth.
British law, by contrast, makes it much easier for a plaintiff to bring and win a libel lawsuit, which is why American celebrities often sue there rather than in the United States. British law presumes that defamatory statements are false, puts the burden on the defendant to prove that the statement was in fact true, and does not protect statements about public figures.
However, only living persons have causes of action for defamation under the common law in both England and the United States. Even if a plaintiff brings a lawsuit for defamation while alive, the lawsuit dies with them unless state laws specifically allow for the action to go on.
Moreover, Milligan is clearly not trying to assert that Princess Diana is, in fact, a mutant superhero returned from the dead, and no reasonable reader would think he was. X-Statix can only be taken as fiction and thus cannot be seen as defamatory.
Two cases from the 1980s involving Hustler and Penthouse magazines are particularly noteworthy. Rev. Jerry Falwell won a $150,000 judgment against Hustler Magazine for a parody interview depicting incest, and a Miss Wyoming won a large verdict against Penthouse International Ltd. over a fictional story about a baton-twirling Miss Wyoming with certain sexual skills. However, both cases were overturned on appeal. Regarding the Penthouse case, the Tenth Circuit said that the story was clearly "all fanciful and did not purport to be a factual account … [T]he story could not be taken literally, and the portions charged as defamatory could not reasonably be understood as a statement of fact."
More recently, the California courts have several times rejected a libel lawsuit by recording musicians Johnny and Edgar Winter based on their depiction as evil, half-worm, half-human characters in DC/Vertigo's miniseries "Jonah Hex: Riders of the Worm and Such." In 2000 and again in June 2002, the California Court of Appeal held that the libel claims were correctly thrown out because no reasonable reader could believe that the depiction was in way factual.
Rights of Publicity
Milligan can also turn Princess Diana into a comic-book character because he is writing a work of fiction, and not merely using her unauthorized likeness to advertise cars or refrigerators.
Several states such as California and Indiana have passed laws recognizing that celebrities have a right to prevent unauthorized commercial appropriation of their personas; these laws generally recognize such rights as property rights that should be protected after death and that can be transferred to one's relations like any other property. California first recognized that living celebrities had such rights in 1972, and expanded that right to dead celebrities in 1985 with some revisions in 1999. In fact, Princess Diana's posthumous image is represented by CMG Worldwide, Inc., an Indiana-based agency that specializes in representing dead celebrities.
However, such laws also have to comport with the First Amendment and the reporting and artistic freedoms protected there.
For example, California Civil Code Section 3344.1, better known as the Astaire Celebrity Image Protection Act, makes it a civil violation punishable by $750 or actual damages to use a deceased personality's name or likeness for "purposes of advertising or selling" products. However, the statute does not apply if the so-called product is a "play, book, magazine, newspaper, musical composition, audiovisual work, radio or television program, single and original work of art, work of political or newsworthy value, or an advertisement or commercial announcement of any of these works … if it is considered fictional or nonfictional entertainment, or a dramatic, literary or musical work."
Accordingly, an issue of X-Statix featuring Princess Diana probably would not violate California law because it is a fictional entertainment that would be considered a book or magazine or work of art, but an unauthorized commercial featuring Princess Diana's image probably would be illegal. By contrast, an action figure of the X-Statix's version of Princess Diana might be illegal without authorization, since that would be more directly considered a traditional product.
Princess Diana
Diana Spencer, Princess of Wales, was the focus of worldwide attention due to her marriage to Prince Charles, first in line to succeed Queen Elizabeth II as the head of state though with only nominal actual governing powers. Prince Charles and Princess Diana were married in 1981, separated in 1992, and divorced in 1996. Diana lost the title "Her Royal Highness" but continued to be known as Diana, Princess of Wales, and still retained certain influence and power as the mother of Charles' sons.
Diana died on August 31, 1997, when a car carrying her and her new lover Dodi Fayed crashed at high speed in the Pont de l'Alma tunnel in Paris. The driver reportedly had a high blood alcohol level and was speeding at the time of the crash.
Since her death, Princess Diana has played a part in several novels, an American soap opera, and even several other comic books since her death. In the second issue of DC/Wildstorm's Jenny Sparks: The Secret History of The Authority, in a story set in 1992, she appears, albeit in disguise and never named outright, as an agent of the Vatican who married into the royal family to get information on them. She also plays a part in Grant Morrison's The Invisibles, published by DC/Vertigo; there, she was allegedly assassinated because she refused to participate in a conspiracy and give birth to an extradimensional being.
Sources: Peter Milligan's essay in the Guardian about Princess Diana's appearance in X-Statix is available on-line here. Robert D. Sack, Libel, Slander & Related Problems (3rd edition) (PLI, 2003) (see sections 2.10.1 and 5.5.2.7.2 - .4). Rodney A. Smolla, Law of Defamation (West Group, 1997) (see section 1.03[3]). The Second Appellate District's June 2002 decision in Edgar Winter v. DC Comics is on-line here. California Civil Code Section 3344 and 3344.1 are available on-line via the state legislature here, and Indiana's right of publicity statute, IC 32-36-1, is on-line here. CMG Worldwide Inc. is on-line here, and its representation of Princess Diana is described here. Mark Roesler of CMG has an article on the right of publicity on-line here.
Attacks on Comics and the Comics Code (last updated July 2002) (back to top)
By the early 1950s, comic books, while still largely limited to a young audience, were becoming an actual medium and superheroes were becoming just another genre. However, a national crusade concerned with the perceived increase in juvenile delinquency moved to ban two particular genres, the crime and horror genres exemplified by comics such as Crime Does Not Pay and Tales from the Crypt. This crusade resulted in local laws of dubious constitutionality and culminated with a set of Senate hearings held in New York City in April 1954.
In response to the hearings, comic-book publishers adopted a restrictive, self-enforced code that effectively killed off the crime and horror genre and that helped restrict the comic-book medium for decades to what was suitable for children. That code came under attack first in the 1970s and was completely abandoned by one of its biggest supporters in 2001.
Dr. Frederic Wertham
The crusade against crime and horror comics began with one man, Bavarian-trained psychiatrist Dr. Frederic Wertham, who provided clinical help in the 1940s to many underserved groups. Wertham started Harlem's first psychiatric clinic in 1946, and later provided evidence about how segregation damaged black children's self-esteem, evidence that the United States Supreme Court looked to in outlawing segregation in the landmark Brown v. Board of Education decision.
Wertham began examining comic books as a result of his work with juvenile delinquents, and he said his opinions were based on clinical investigations in 1945 and 1946. Wertham blamed comic books for stunting children's reading abilities and for exposing them to criminal thoughts and techniques, and wrote his attacks in the pages of Ladies Home Journal and in his own book, The Seduction of the Innocent.
Wertham's writings met with popular acclaim, and groups formed around the country to ban crime and horror comics, holding up Wertham's article as evidence. Noted sociologist C. Wright Mills also praised Seduction of the Innocent in the April 25, 1954 New York Times Book Review:
| | "All parents should be grateful to Dr. Wertham for having written Seduction of the Innocent … Wertham has read these ugly pamphlets with the eye of the psychiatrist; it has made him an angry man, who has good reasons for anger … Dr. Wertham's cases, his careful observations, and his sober reflections about the American child in a world of comic violence and unfunny filth testify to a most commendable use of the professional mind in the service of the public." | |
However, Wertham's methods were criticized by others. For example, Dr. Frederic Thresher, who had studied youth gangs in Chicago, wrote in 1949 that Wertham's methods were flawed and should not be given much credence. "The current alarm over the evil effects of the comic books rests upon nothing more substantial than the opinion and conjecture of a number of psychiatrists, lawyers and judges," he wrote.
| | "Wertham's major claims rest only on a few selected and extreme cases of children's deviate behavior where it is said the comics have played an important role in producing delinquency … [I]t is doubtful if he has met the requirements of a scientific case study or the criteria for handling life history materials … Unless and until Wertham's methods of investigations are described, and demonstrated to be valid and reliable, the scientific worker in this field can place no credence in his results." | |
While most people grounded their movement on Wertham, his own critique went much further. He thought all superheroes – particularly Superman, Batman and Wonder Woman – were simply a special form of crime comics, and attacked those particular icons for several reasons.
As Wertham wrote in Seduction of the Innocent, Superman was a fascist who led children to one of two extreme attitudes; they would either "fantasy themselves as supermen, with the attendant prejudices against the submen," or become "submissive and receptive" to such strong men. With his powers of flight and super-strength, Superman also did his readers wrong by giving them "a completely wrong idea of [the laws of gravity] and other basic physical laws."
Batman and Robin, on the other hand, were especially dangerous because they help "fixate homoerotic tendencies by suggesting the form of an adolescent-with-adult or Ganymede-Zeus type of love-relationship," Wertham wrote. Wonder Woman, similarly, demonstrated a "horror type. She is physically very powerful, tortures men, has her own female following, is the cruel, 'phallic' woman. While she is a frightening figure for boys, she is an undesirable ideal for girls, being the exact opposite of what girls are supposed to want to be."
The Attacks and the Industry Response
The First Amendment was the biggest obstacle to the calls for legislation. Comic books were not the only medium to face restrictions, and the Supreme Court in 1948 declared unconstitutional a New York law that made it illegal to publish a magazine made up primarily of criminal news, Winters v. New York (1948). Because of this law, many thought that it would be difficult to pass a law criminalizing crime comic books.
Nonetheless, the Los Angeles Board of Supervisors passed an ordinance on September 21, 1948, banning comic books depicting crimes. The law was declared unconstitutional by the California Superior Court in December 1949 on the grounds that any law banning such comic books might also ban other illustrated matter; legislators seeking to ban comic-books thus became the first to try defining what they were, long before Will Eisner and Scott McCloud tried for very different reasons. New York's state legislature tried several times between 1948 and 1955 to pass legislation controlling comics. No bill became law, though one was defeated only by Governor Thomas Dewey's veto on the grounds that the proposed law as written was unconstitutional.
Throughout the 1940s, several publishers adopted their own internal codes and formed advisory boards filled with psychiatrists and educators. For example, National Publications, the publishers of Superman and Batman, had a seven-point policy prohibiting sex, poor grammar, bloodshed, torture, kidnapping, killing, or the glamorization of crime. The policy was arguably overbroad; in order to avoid depicting sex, "the inclusion of females in stories is specifically discouraged. Women, when used in plot structure, should be secondary in importance." (Ex. 21 in Senate Hearings)
Specifically in response to the new attacks, smaller publishers formed a trade association to police themselves. In July 1948, the Association of Comic Book Publishers announced a six-point, self-enforced code that prohibited (1) "sexy, wanton" comics, (2) comics inducing sympathy for criminals, (3) scenes of sadistic torture, (4) vulgar and obscene language, (5) non-negative depictions of divorce, and (6) attacks on any racial or religious group. The association and the corresponding code never had much industry support, in part because some publishers did not feel the need to participate.
The Hearings
The attacks against comic books came to a dramatic head in April 1954 when a subcommittee of the Senate Judiciary Committee opened hearings specifically on comic books as a potential cause of juvenile delinquency. The stars of the hearing both appeared on the first day, April 21, 1954, one after the other. Dr. Frederic Wertham gave testimony focused almost entirely on how comics taught children how to commit crimes, avoiding the sex-related aspects of his argument. William Gaines then took the stand to blast Wertham as a communist and to defend the horror genre and the limits therein.
Gaines was at the time the president of the Entertaining Comics Group, which at the time printed 2 million comic books a month. Entertaining Comics was started by Gaines' father and started off publishing humor comics and Picture Stories from the Bible, but William Gaines expanded the company's range to the horror genre ("I did not start crime; I started horror," he testified).
"Pleasure is what we sell, entertainment, reading enjoyment. Entertaining reading has never harmed anyone," Gaines testified. "A little, healthy, normal child has never been made worse for reading comic magazines. The basic personality of a child is established before he reaches the age of comic-book reading. I don't believe anything that has ever been written can make a child overaggressive or delinquent."
The senators then put Gaines on the defensive, asking him to defend his comics. Gaines famously defended one cover, which depicted an axe-wielding man holding the severed head of a blond woman, as in good taste, "for the cover of a horror comic." He went on:
| | "A cover in bad taste, for example, might be defined as holding the head a little higher so that the neck could be seen dripping blood from it and moving the body over a little further so that the neck of the body could be seen to be bloody." | |
He also defended one story which depicted a white man who becomes enraged when his daughter begins dating a Mexican Catholic boy whose family just moved into the neighborhood. The man falsely tells his neighbors that the boy raped his daughter, and the resulting mob attempts to kidnap the boy and whip him to death. It turns out that the mob kidnapped the wrong person and that the man killed his own daughter, who had secretly married the Mexican Catholic boy.
Apparently missing the story's viewpoint that the racist father was in the wrong, Wertham singled out this story as an example that comic-book publishers outdid Hitler in terms of promoting race hatred. "Hitler was a beginner compared to the comic-book industry. They get the children much younger." Gaines, on the other hand, said that this story was "one of a series of stories designed to show the evils of race prejudice and mob violence," and that he was "very proud of it."
The Comics Code
The strong message sent by the senators at these hearings was that the comic-book industry should regulate itself better, and the industry got the hint. Most publishers thus formed the Comic Magazine Association of America (CMAA), which included a regulatory branch, the Comics Code Authority, that would approve comics before they could be distributed by major distributors. The Code itself was adopted on October 26, 1954, and was the basis for the comic industry's self-regulation for the next few decades.
The Code consisted of 41 regulations, with many specifically designed to drive crime and horror comics from the newsstands. For example, no comic book could include the words "horror" and "terror" in its title, and the word "crime" could be used only with strict limitations. Other regulations banned profane language, attacks on religious or racial groups, nudity, drawings of women in suggestive poses or with exaggerated physical qualities, and any depictions of rape or illicit sex relations. As a catch-all, the Code finally prohibited all elements that were "contrary to the spirit and intent of the Code, and are considered violations of good taste or decency."
Several publishers, big and small, refused to join. Dell Publications maintained Helen Meyer's position and did not want to be associated with other publishers. Gilbertson Publications, which published Classics Illustrated, said that its works were simply not comic books. William Gaines' Entertaining Comics Group tried distributing its comic books without the CCA, but could not distribute to wholesalers and EC went out of business in 1955.
The Code was still not enough for those opposing comic books, such as Wertham, who did not trust the comic-book industry's self-policing. Washington State passed laws banning crime and horror comics in 1955, but they were declared unconstitutional by the state's supreme court in 1958 (Adams v. Hinkle). Los Angeles County adopted a new version of its earlier ordinance, now defining comic books generally as five or more sequential drawings accompanied by narration; this ordinance was ruled unconstitutional in June 1959 (Katzev v. County of Los Angeles).
Changes to and Abandonment of the Comics Code
The Comic Code Authority stayed constant and rigid for the next 16 years, but then began facing more pressure from its members. Marvel Comics finally forced the first real change in the code in the early 1970s after it published an issue of Spider-Man that showed Peter Parker's college roommate's problems with drug use. Marvel had been asked to publish such an anti-drug comic by the Department of Health, Education and Welfare, but the CCA rejected the story as against the code. Marvel published the story anyway and won widespread acclaim for its depiction of drugs. The new code, adopted February 1, 1971, added a provision allowing for stories showing drug use, but only in a negative light.
The Code was revised more substantially in the late 1980s, this time under pressure from DC Comics, which reportedly had considered dropping the code entirely. The revised Code no longer contained specific regulations but instead had more general standards and required that comics be appropriate according to seven general categories: respect towards institutions, language, violence, sensitivity to minority groups, crime, and attire and sexuality.
Major publishers began experimenting with new genres even more in the 1990s, taking advantage of the revised Code as well as two business-related changes: the growth of a "direct market" whereby publishers could sell to retailers without relying on distributors, and the growth of distributors that would handle comics not approved by the Comics Code Authority. DC Comics developed comics specifically for mature audiences, such as the widely popular Sandman and the overall Vertigo line, and stopped submitting certain comics for approval by the CCA.
Marvel Comics went even further in 2001, withdrawing completely from the CCA and calling the Code irresponsible and ineffective. Mimicking the model used by the Motion Picture Association of America, Marvel said it would rate its own comics by their suitability for particular audiences and would identify which comics had violent or sexual content. Marvel had had problems getting CCA approval for comics such as X-Force, which the New York Times Book Review has praised as a media satire, and later debuted its MAX line of adult-themed comics.
With or without the Code, comic books still occasionally run afoul of general obscenity laws. In recent years, several people – ranging from alternative comic-book artist Mike Diana to various retailers -- have been prosecuted. The Comic Book Legal Defense Fund continues to represent such individuals against litigation of this and other kinds.
Sources: The Senate hearings are reprinted. Amy Kiste Nyberg, Seal of Approval: The history of the Comics Code (University Press of Mississippi, 1998). Matt Brady, Marvel seeking divorce from Comics Code, Cleveland Plain Dealer, May 3, 2001. Matt Brady, Cracking the Comics Code, reprinted in April 2001 at www.fandom.com. The Comic Book Legal Defense Fund is on-line here.
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All art is copyright their respective owners.Footnote Comics is a service mark of Stephen Lee. Newsaic and FootnoteTV are registered service marks of Stephen Lee.
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