As you may know, as every discussion of the Marvel Cinematic Universe acknowledges, 20th Century Fox owns the filmic licensing rights to Marvel’s X-Men. These rights extend somewhat murkily.
The scope of the grant of rights was broad, although the media within which they could be exploited (i.e. theatrical motion pictures) was narrow. Paragraph 6 of the Agreement, entitled “Granted Rights,” states that Property to which Fox obtained rights included (i) certain characters specified in Exhibit A to the Agreement, (ii) the so-called “origin stories” of those characters appearing in the story or screenplay of the film, (iii) all individual storylines from individual comic books other than the origin stories, and, in a catch-all provision, (iv) “all other elements relating to the Property and the Characters.”
What’s definite is that Marvel has tried and continues to try to get around the murk, cutting straight across the rights problem by effectively off-branding their own stuff. Why are the Inhumans getting such a push, on page and screen? Because they’re sort of mutants, but not. The Inhumans’ elevator pitch can be designed to sound exactly like the X-Men’s, “mostly white, mostly human-looking people with superpowers and occasional paintbox skintones brought on around puberty, who experience drama amongst their own number whilst trying to survive as different.” You don’t have to mention that they’re also an American medieval court drama on the moon, but I guess that can be Game of Thrones’d away as a backup or a bonus.
The Inhumans aren’t the first example of Marvel trying to wheedle their way around the live-action restrictions to any and all X-Series the company brought for itself when Avi Arad, in his Marvel Films role of the time, sold off these rights in 1993. Spirits were high at Marvel then; you can read the editorial excitement in old issues of the time. And it makes sense: X-Men: the Animated Series (also sold and Executive Produced by Arad, and bought for Fox Kids by Margaret Loesch, previously CEO of Marvel Productions [later Marvel Films]) was a five-year success that primed huge swathes of new comic book and toy product audience, myself included. But things went south and Fox retained the seed patent without producing any fruits. Sold for a flat fee, the ever-popular, endlessly minable X-Men were out of Marvel’s creative reach, up to and beyond Fox’s eventual, and for them very profitable, release of X-Men in 2000. What did Marvel do? What did Avi Arad do? They bootlegged their own product. They created Mutant X.
Mutant X premiered in 2001 and ran for three godawful seasons until Fireworks Entertainment, a Canadian studio co-producing the title, ceased trading. This company was reported at the time as “facing debt” due to declining interest in action-adventure television in the U.S. (In 2004? Okay, sure) Coincidentally, at time of dissolution Fireworks was also in the midst of being sued by Fox. Because Mutant X was too much like an X-Men product.
This appeal, raising issues concerning the rights of a trademark licensee, arises from a dispute between the motion picture studio that produced the film “X-Men” and the studio’s licensor, which has published “X-Men” comic books and currently produces the television series, “Mutant X.” […] The injunction was sought on the grounds that the TV series violated Fox’s contractual rights and its rights under the Lanham Act.[…]
In April 2001, Fox filed the instant lawsuit, claiming that the Defendants violated its intellectual property rights in the “X-Men” film and associated marketing and branding efforts by marketing and producing the “Mutant X” television series, whose concept, premise, and characters Fox alleges are virtually identical to those of the “X-Men” film. Further, Fox claims that in violating the contractual “Freeze,” Marvel has created a “knock-off” product to “cash in” on Fox’s efforts, thereby cheapening the value of Fox’s film and associated marketing opportunities, inducing purchasers of TV programming and the public to believe that the “Mutant X” TV series is associated with Fox’s film, and diminishing the market for Fox’s planned sequel(s) to the “X-Men” film.
In the episode by episode world of Mutant X, a team of super-powered, leather-wearing young adults and their conflicted, but deeply good, paternal leader use highly advanced technology, including a personal stealth plane and a holographic training room, to monitor a world that hates and fears them, just like every iteration of the X-Men. In every episode of at least the first series, the phrase “New Mutants” (Is that capitalisation illegal? My bad.) is uttered. The superpowered protagonists are new mutants, we’ve got to help the other new mutants, why does x think y about new mutants? Cedric Smith, the voice of Fox Kids’ Charles Xavier, appears in the first episode as the bald, reclusive, older man responsible for the sudden proliferation of “all these new mutants.” Characters discuss each other’s “mutant powers.” The New Mutants title was a runaway success for Marvel Comics in the 1980s. To speculate, by 1994 the title had been retired; relaunched as X-Force and its characters scattered between other successful books. This could explain, I’m guessing, why “new mutants” was perceived as jargon both acceptable on the get-it-past-Fox side of things, and viable on the make-it-like-X-Men one. (This could also explain why Fox’s upcoming New Mutants uses the title and the characters– the latter may all have been optioned in ’94 thanks to appearances in then-current titles, and by using “new mutants ” so much in a show legally required to use no X-Men trademarks, Marvel may have shot themselves in the foot, providing precedent for reappropriation by just anyone. But these are all shots in the dark…!)
Mutant X, in fact, was a title about Alex “Havok” Summers that had been extended from a year-long mini-series to a thirty-five periodical venture due to, as Wikipedia sources to a letters page I can’t access, “unexpectedly high sales”– the title “Mutant X” belonged to X-Men comic books long before Mutant X was definitely not an X-Men television show. Moira McTaggart’s son Kevin (also known as Proteus) was mysteriously referred to as Mutant X in 1979; the later Havok series which claimed the title ended in June 2001. Four months later, the Marvel Studios/Fireworks Entertainment/Global Television Network TV show debuted. A show firmly, Marvel claimed, outside of the X-Men licensing wheelhouse. And technically it was, if you never saw an X-Man and wouldn’t know one if he bopped you on the conk, bub. (Seven months after that, in May 2002, Marvel published Mutant X: Origin, a Mutant X comic unrelated to the other Mutant X comic. They make it so easy for us, don’t they?)
Of course legality is all about technicality: it’s not simply that Marvel sold all X-Men TV rights to Fox and so Marvel can’t make any TV that seems anything like X-Men. Marvel sold Fox the right to say “you can’t make that without us” about liveaction X-Men features. Fox had their own dictionary that let them argue that “feature” meant “anything.” Marvel were in favour of a definition of feature that refined the subject to feature length, as in a production that Joe Viewer would recognise in that nebulous vernacular sense as a movie.
The original, pre-release complaint that Fox made was legally settled; Mutant X was allowed to air without violating the Marvel-Fox X-Men licensing agreement if there were no literal, absolute reference to the X-Men in the show’s episodes or marketing. You can’t have Shalimar and Jesse talk about Marvel Girl, Hank McCoy, the mutant superheroes “the X-Men,” or the Fox movie X-Men. Within their show, Marvel and associates stepped through the biggest loophole that was dangled so tantalisingly in front of them: well okay, we won’t mention the X-Men. We’ll just mention everything else they ever touched. Ha ha! Law is easy. Check what I heard about all those New Mutants! So the show goes ahead. Marvel made, if not enough bank to justify produce three full seasons, then some sort of satisfactory return. Or why bother?
[pullquote]Fox doesn’t look much better than Marvel, from a human perspective; their allegation that Marvel’s attempt to cash in on Fox’s efforts by profiting from stories based in Marvel’s intellectual property is plum nonsense.[/pullquote] Was Mutant X’s creation and dissemination a breach of contract? This Fox was allowed to pursue. Mutant X was distributed by Tribune Entertainment, and Tribune was hit with the suit when Fox looked legal askance at how X-Men-y Mutant X’s sales pitches absolutely, baldly were. Tribune settled with Fox and then turned around and sued Marvel for $100m because, they said, Marvel had encouraged them to market Mutant X like it was Mutant X-Men, right down to using clips from the 2000 Fox film and copying their logo. Marvel had allegedly been telling Fox that there was nothing X-Mesque about Mutant X, whilst simultaneously assuring Tribune that Fox had no skin in the televisual game. Tribune’s suit suggests that Marvel set out to do exactly what they weren’t supposed to, knowing it was wrong, and that none of these lawsuits should have been unexpected. Watching Mutant X makes it obvious that the show exists as a proxy.
Fox doesn’t look much better than Marvel, from a human perspective; their allegation that Marvel attempted to cash in on Fox’s efforts (their film X-Men) by profiting from stories based in Marvel’s intellectual property (comics bearing the X-Men title) is plum nonsense. Alleging Mutant X impinged on Fox’s version of the X-Men, instead of on Fox’s sole bought right to create and market a live-action X-Men, is a crock. Fox did not invent the X-Men, and nor did they invent much of the visual language Mutant X cribs from. (It’s black leather and wirework and 2000-era haircuts, but that’s The Matrix and Dark Angel and Futureshock neck plugs that signify nothing, as well as plain ol’ sign-of-the-actual-times trendiness.) The claim from their lawsuit that “[f]ollowing the 1993 Agreement, Fox spent nearly seven years developing ‘a story that offered the excitement of mutant superheroes, yet also addressed serious issues of intolerance and bigotry toward them in an entertaining way’” is also arguable (maybe they tried), but that’s a fight for another day. Fox bought a lucrative license for a flat fee and sat on it until the market looked better for them, while Marvel’s X-comics went to shit and Marvel itself went bankrupt. But Marvel is a work-for-hire exploiting IP brand hog, so it’s all dogs around this table, really.
What makes Mutant X such a remarkable piece of business shade is that it’s rubbish. Calling it “deeply flawed” would imply a base coherence, a wellspring of some element of quality. But it doesn’t have any of either.
So was it really worth all that? Why did Marvel enter into such a legally precarious venture only to make such a poor product? Did you get two other companies sued, get yourself sued, see one co-producer broken up and sold off, for this? Why? Was the need to keep the Mutant X title trademark in play so severe? Was the simulacrum premise so necessary that some recognisability couldn’t be sacrificed for internal structure or meaning or point?
Early on in production a consultant was actually hired to remove anything too recognisably X-Men from the concept. It’s recorded that this stripped version was basically discarded before the screenplays made it to production. What a waste! What was the use of moving around all of that money for a show so poor that a whole episode is hard to watch and subsequently remember? And, how did it get three seasons after it was sued and bad during the very first one? Reports from 2004 suggests that the only obstacle between Mutant X and a fourth season was the closure of Fireworks Entertainment. The meta-saga of Mutant X looks like a series of people and companies just playing themselves, over and over, in a big bizarre ouroboros.