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 (link no longer available) 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.

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.”

From the ruling 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.)

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.