Flex Mentallo Finally Returns to Print — A Brief History and Atlas Letter

Now, this is interesting — Pamela Mullin has just announced at the Vertigo blog that DC will be publishing the long-out-of-print Flex Mentallo in a “Deluxe Edition hardcover with bonus material” this fall. The four-issue miniseries has been a fan favorite due to its creators — Grant Morrison and Frank Quitely — and unusual meta-fictional treatment of comics and their influence on readers.

Flex Mentallo #1

This isn’t the first “we won’t publish this!” item that has come back into print with DC’s new leadership. However, since this one had legal impediments to its reprinting, I thought some might enjoy wandering through the story’s history.

Flex Mentallo, as a character, first appeared in Doom Patrol #42 (1991), in which his origin was given as a parody of those old Charles Atlas “become a man” advertisements, with a spinoff miniseries following in 1996. Charles Atlas Ltd. sued DC in 1999, although the case was dismissed the next year as a valid parody protected by the First Amendment.

Judge Buchwald ruled that Charles Atlas had failed to raise the issue within the six-year statute of limitations required by such cases, and she also found that the DC comic was a parody of the Charles Atlas ads, and therefore not subject to a lawsuit for trademark infringement.

The Atlas company was upset that the Mentallo bodybuilder was shown hitting his former girlfriend after he gained muscle, with company president Jeffrey C. Hogue saying

“There has to be a limit to how far you can let someone ridicule your trademark. … They took that character and made him into something that was not an Atlas man. We’ve always stood up for the underdog. If anyone was beating a woman, we’d be the one stopping it.”

Here’s the full ruling. From it we learn that DC had planned to issue a collection in 1998 titled Flex Mentallo: Man of Muscle Mystery, but when they received a cease-and-desist letter on January 14 of that year, they “aborted” their plans. They declared in court that

Since then, DC has not utilized the Flex Mentallo character in any of its publications and “has no present plans to reprint or redistribute any of the Doom Patrol issues including Flex Mentallo or any issues in the Flex Mentallo series.”

This is no longer true, since Doom Patrol #42 was included in Doom Patrol: Musclebound (2006), which reprints #42-50 of the series.

Since Charles Atlas spent plenty advertising in DC Comics in the past, according to the judge, “Atlas cannot now, as a matter of law, profess ignorance of the publication of the very comic books in which it has placed millions of dollars of advertising over several decades.” (That’s a twist I wasn’t previously aware of.) Note that, contrary to claims elsewhere, DC was not told that they would owe Atlas a percentage of future publication profits. They won, via summary judgment. (And in spite of Jim Shooter testifying as an expert witness for Atlas and against Morrison’s work.)

Flex Mentallo, real man

Now comes my speculation. I wonder if the previous leadership at DC didn’t want to rock the boat and give Atlas any reason to come after them again. If part of their victory depended on being outside the statute of limitations, they liked wanted to avoid “restarting the clock” with what could be argued was a new publication, so Flex Mentallo stayed on the shelf. But the current management, with the full weight of Time-Warner behind them, isn’t quite so meek. Customers want this collection, clearly, so now it will exist. Hopefully with some interesting history and background articles included in the bonus materials.

I’m available to rewrite this article for just that purpose, DC. And here’s my own little piece of the saga. After commenting on rec.arts.comics.misc, the Usenet comic newsgroup, in August 2000 about the case, I received a rather odd email from Mr. Hogue, Charles Atlas president and CEO. I won’t reprint the whole thing here, out of concern for his copyright, but his signoff “Thank You for your time and I wish you all GOOD THINGS IN PERFECT STRENGTH & HEALTH!” and email tagline “A Privately owned NY CORPORATION ESTABLISHED FOR BUILDING STRONG MEN AND WOMEN OF GOOD CHARACTER SINCE 1929!” gives something of the flavor (and frequent use of capital letters and exclamation points).

He wanted to thank me for “you [sic] astute and insightful comment regarding the sudden “pulling of the Flex Trade Paperback” by DC comics.” His opinion (excerpted) is as follows:

This was a very bad decision made by a judge which didn’t allow us to produce evidence at a trial of ACTUAL CONFUSION and yet in the opinion she say that “ATLAS did not offer any evidence of consumer surveys” hahah….(“How could we offer evidence like that unless we were afforded a trial to introduce evidence!”) In short this Summary Judgment dismissal with it’s 30 page opinion is the most amazing attempt by a judge “to avoid a legal issue that I have ever seen!” It is a well established legal principle that ANY issue of fact shall be sent to a JURY to decide!

After some praise for their products and the virtues they instill in their customers and complaints about how hard it would be to police every publication for use of their trademark, he continues

I CERTAINLY wonder how DC would feel if we had SUPERMAN GETTING SAND KICKED IN HIS FACE BY A LITTLE GIRL and then turning to the MR. ATLAS COURSE TO “BECOME A BETTER PERSON”? Just how happy DC would be in our use of SUPERMAN as a PARODY? Makes one wonder about who really one [sic] this so called case.

That would be something worth seeing, certainly. As for why I got the email, it was a different time online back then, with fewer people on the internet, which made it more likely for these kinds of odd exchanges to happen. (I wound up talking to then-Archie president Michael Silberkleit about Dan DeCarlo in a similar fashion.) I didn’t follow up on Mr. Hogue’s invite to call and discuss the matter with him.

Similar Posts: Betty Boop Public Domain — Are Early Looney Tunes Next? § Crocheted Heroes § October 2011 Previews: Slim Pickings § Some Thoughts on the Comic Con Trademark Kerfluffle § Banned Comic Available Digitally; This Is the New DC


16 Responses to “Flex Mentallo Finally Returns to Print — A Brief History and Atlas Letter”

  1. Thom Says:

    >I CERTAINLY wonder how DC would feel if we had SUPERMAN GETTING SAND KICKED IN HIS FACE BY A LITTLE GIRL and then turning to the MR. ATLAS COURSE TO “BECOME A BETTER PERSON”? Just how happy DC would be in our use of SUPERMAN as a PARODY? Makes one wonder about who >really one [sic] this so called case.

    Considering DC has published numerous Superman parodies and has allowed parodies of the character from other publishers? My guess is “They would manage.”

  2. Kevin Says:

    Upon reflection, since we now live in a time when a hardcore XXX Batman “parody” can be released with apparently no legal ramifications, it’s amazing that it’s taken DC this long to collect the mini-series.

    Nevertheless, this is fabulous news.

  3. Brian Cronin Says:

    I think you’re spot on, Johanna. The old regime likely just thought it was not worth the hassle/risk of opening themselves up to another lawsuit, even if they were pretty confident that they would win it.

    You could argue it was a simple balancing test…”Money we would make by selling this comic” vs. “Money we would have to spend to defend ourselves.”

    And you would have to think that the former has increased a lot over the years (due to Morrison and Quitely becoming more and more famous) and the latter…well, the latter is probably about the same (in-house lawyers, and all that).

  4. Rivkah Says:

    All I can see is a man with a hairy chest, and I can’t look away…

    Superhero comics need more hairy-chested men.

  5. kate Says:

    I can’t help but think, “Dilute, dilute, OK!” in response to Mr. Hogue’s somewhat erratic writing, there.

  6. Rich Johnstpn Says:

    DC let Chris Ware get away with a lot worse. And as for Superman XXX…

  7. Kenny Cather Says:

    I ended up trading e-mails with Jim Shooter once when I e-mailed Broadway Comics a fan letter. It was a pretty cool world back then….

    I dunno, I get the guy’s point. It’s one thing to make fun of your own IP…it’s quite another to make fun of of someone else’s.

  8. LA Comics News Roundup: publishers kickstart 2011 « Corey Blake Says:

    [...] Talking with Gods, provided to CBR. For more on the legal battle with Charles Atlas, check out Johanna Draper Carlson’s great summary, with links and excerpts of a private email she received from Charles Atlas CEO Jeffrey C. Hogue [...]

  9. Q Says:

    I heard that Charles Atlas, Ltd. settled out of court with DC for an undisclosed amount after it went to court.

  10. Johanna Says:

    Why would DC need to settle? The judge ruled in their favor.

    There are a lot of rumors around this case, so I tend not to believe them without more to them than just “I heard”.

  11. shagamu Says:

    “This is no longer true, since Doom Patrol #42 was included in Doom Patrol: Musclebound (2006), which reprints #42-50 of the series.”

    Oddly enough, that’s the only Doom Patrol collection that remains out of print. It’s sold out at Amazon, and I had to order it from one of their independent sellers.

    Maybe DC refrained from reprinting Doom Patrol: Musclebound in order to avoid trouble with the Charles Atlas Company. Now that it’s all settled, they should seriously look into reprinting it, or it will start to sell for ridiculous prices everywhere.

  12. Grant Morrison’s Supergods: What Masked Vigilantes, Miraculous Mutants, and a Sun God from Smallville Can Teach Us About Being Human » Comics Worth Reading Says:

    [...] A Post-Aquarian take on the Golden Age, as seen in Flex Mentallo. [...]

  13. Westfield Comics Blog » 10 (OR MORE) THINGS I LURVE ABOUT DECEMBER 2011 COMICS (AND THINGS) Says:

    [...] seemingly the beginning of time. My wife Johanna has been covering this story for years over at Comics Worth Reading, and she does a fine job of summarizing the details in a recent article. (Note that it’s packed [...]

  14. October 2011 Previews: Slim Pickings » Comics Worth Reading Says:

    [...] out, with fans wanting a collection ever since, but better late than never, and there were some unique circumstances getting in the way of the reprint. It’s a mind-blowing story about the transformative power [...]

  15. Supergods: Grant Morrison on Superheroes | Mr. Vertigo Says:

    [...] a collected edition has been held up for years due to a lawsuit by the Charles Atlas company (look here for a good overview). I’ve been waiting to read the series for years, being unable to afford [...]

  16. Banned Comic Available Digitally; This Is the New DC » Comics Worth Reading Says:

    [...] that’s great for those of us who’ve wanted reprints of such comics as this rare item or Flex Mentallo, it also suggests a much more commercial approach to the library, where all that matters is the [...]

Leave a Comment

Subscribe to comment feed.




Categories:

Pages:



Meta:

Most Recent Posts: