31 Jan Is The Punisher Logo a Hate Symbol?

Expect an in-depth video about this on the Pop Sequentialism YouTube Channel soon, but I wanted to be sure to address in real time a recent controversy that has brought great social negativity into the comic book collecting realm. It has polarized comic fandom and presented a microcosm of the divisions in American Society at large. I am speaking of course about calls to retire The Punisher or recall his logo which has been adopted as a defacto hate symbol by some of the same right-wing extremist groups that recently besieged the Capitol building on January 6th. Variations of the classic Punisher Skull Logo adorned flags, banners, and clothing waved and worn by participants in an act of insurrection incited by a long campaign of conspiracy theories fueled by the former president of the United States and a core group of his enablers.

A vocal contingency of fandom protests these calls for change as an overstep of cancel culture, while online petitions have suggested that a storyline in which the Punisher targets white nationalist groups like The Proud Boys, Oath Keepers and others would redeem the logo by showcasing an overt stance against their ideology. A solution presented by a consensus of fans encourages Marvel or parent company Disney to send a cease and desist notice to all unauthorized users of the Punisher logo.

I count myself among those who would love to see Disney enforce their IP, but how exactly would they do that? It’s a game of whack-a-mole trying to wrangle something back once it’s been co-opted by Nazis. The swastika was a symbol of peace and friendship for thousands of years until it became the logo of Germany’s National Socialist party, and it is now indelibly imprinted as a symbol of hate.

Pepe the Frog creator Matt Furie has lobbied for years that his cartoon character is just a fun-loving stoner stolen by hundreds of people he doesn’t know in a context that he doesn’t agree with, but the Anti-Defamation League has refused to remove the character from its database of hate symbols and that has caused Furie a nearly incalculable financial loss. How can it be the burden of a victim to be penalized for an unauthorized bastardization of one’s creation by online douche bags who convert and share racist memes? That very conundrum is dissected and explained in the brilliant PBS Independent Lens documentary, Feels Good Man.

Admittedly, Disney can afford better lawyers than could Matt Furie, but I digress…

If Marvel caves to pressure, where does this stop? What terrible precedent would it set to allow unequivocal deplorables to claim pop culture as their own?  An important repercussion of acquiescence is the precedent that it sets. If we give the Punisher to Neo-Nazis, whose next? Another violent vigilante whose logo is frequently sported by militia is Batman. Do we cut him loose, too? How about Captain America?

The only way to rescue a symbol from Neo-Nazis is to make it completely unattractive to them. So, the best way to “save” the Punisher is to make him specifically target white supremacists. And this is a case where the character’s lack of subtlety might actually benefit. Then again, you’d think that a convicted felon who illegally acquires military-grade assault gear and murders with impunity would be a problem for law enforcement fraternities and gun lobbyists; not a kind of unofficial mascot. It’s this weird, if not predictable, umbrella of Punisher fandom that uncomfortably unites police and criminals (and a lot of groups in between) that showcases how this character can be so drastically, differently perceived and interpreted.

Make no mistake: the character is, without a doubt, problematic. His behavior is emblematic of the black-and-white ideology of most Proud Boys and others prone to harboring discriminatory beliefs and sympathetic to bigoted rhetoric. The general concept of vigilante justice is, itself, a rather right-wing ideal, which is why the dwindling majority of comic book fandom (and those most vocal about their dissatisfaction about the growing roster of female, non-binary, and non-white heroes) are straight, white males who overwhelmingly lean politically republican or libertarian.

Of the 15 women Frank Castle has hooked-up with since becoming The Punisher, only one was a woman of color, and it was while he was under deep cover. Reiko, a Japanese assassin (implausibly working for a Chinese crime family), served more to fetishize Asian women than to showcase any sense of diversity in Frank’s world view.

So in that respect, any suggestion that defends keeping the Punisher as-is in the Marvel Universe without full recognition of the inherent problems with how the character has been written since 1974, is virtue signaling. What really separates Frank Castle from Bernard Goetz, except the body count and some body-building?

It’s going to take more than changing a T-Shirt or a three-issue quasi-liberal re-write to fix what’s wrong with the Punisher. He appealed to Trump Nation because OF COURSE HE DID. The only blacks, Latinos, or “other” are literally cannon fodder for Frank Castle. A bigger problem perhaps is that changing him will please nobody who actually reads those comics. If you are someone who enjoys diversity, you have no expectation of finding it in a Punisher comic, and if you like the Punisher as he has always been, you probably don’t read G. Willow Wilson.

Garth Ennis managed to turn the Punisher into an opera of absurd, over-the-top, murder and mayhem that was so ridiculous you had to respect the moxy of it, but toward the end of his run he presented real consequences when mob wife Jenny Cesare aka Widow Maker is driven to suicide after being consumed by the guilt of a regular person doing once what Frank Castle does all the time. It was the single sober moment among decades of macho, militia fantasy, elevating Marvel’s Rambo above what could have otherwise been Deadpool without the humor. Ennis has made a lucrative career out of skirting the line between the sublime and the ridiculous with complicated narratives like The Boys that are sometimes lost on more basic readers who love his extremes but completely miss the allegory.

From a pure risk-management perspective, isn’t it time that The Punisher dies, anyways? I mean if Captain America–a super soldier, is dead, how the hell is Castle still with us? It would be great to see him go after the Three Percenters, Proud Boys, and Aryan Nations, and for him to righteously decimate their ranks but also die in the fight, symbolizing the toxic corrosion of hatred and epitomizing that violence begets violence. A person of color or member of a marginalized community could pick up the Punisher mantle and continue to use the skull logo as an affront to those rednecks that think Frank Castle was their guy. There’s a nice irony to that don’t you think?

Because I don’t see a bunch of peckerwoods continuing to fly those colors if the new Punisher is gay, black, native or undocumented.

But what would be the repercussions if a real-world copycat started targeting and killing people that they perceived as having ties to one of these extremist groups? Multi-million-dollar wrongful death lawsuits aside, there would be a much larger public backlash than there is already; one that would probably bury the character forever. While it may be an incredible legal challenge to win an incitement case against a mega corporation–especially after the Natural Born Killers ruling, the court of public opinion doesn’t require jurisprudence to force its own kind of justice.

And that brings us back to the challenges of enforcing copyright.

It is impossible to successfully litigate almost any case of merit that involves such a vast number of potential conspirators. Especially when they can’t be proven to be acting on behalf of a single entity. This is, after all, a loose association of hooligans in Punisher shirts. Most of them don’t even know each other, and are linked only tangentially via their fanatical belief in Q Anon and occasional cross-postings on social media. Just the discovery phase of a case involving hundreds or thousands of individual copyright infringements (spread over almost as many jurisdictions) would require sophisticated and expensive detective work and an effectively endless series of court orders, and FOIA requests. That says nothing of the inevitable pushback from media and telecom companies that have stressed for years their commitment to user privacy. If these violations were to meet the burden of proof necessary for trial, the cases would each have to be tried separately, since it would be a violation of the individual seditionist’s civil rights to have their suits involuntarily adjoined.

The most glaring hole in the Cease & Desist option is that many of the T-shirts seen on social media appear to be store bought. Since Marvel has accepted payment for the officially licensed Punisher logo, it’s basically impossible to injunct against its continued use. If the shirts worn or banners waved were home-made (not mass-produced, unlicensed items), each qualifies as a unique work, and it’s hard to prove that a single artwork is consequentially damaging to an openly marketed copyright. Lawyers at firms that specialize in intellectual property make a fortune on cases like these, but they are rarely worthwhile to the plaintiff. If the skull logo is even remotely altered, the new work is protected (to a degree) by not having violated an existing copyright. It may be additionally protected by legal precedents set by artists like Richard Prince and Roy Lichtenstein, who have beat copyright suits by claiming artistic expression by transformative appropriation.

At the end of the day, there is a cap to the worth in litigation fees that Marvel or Disney would incur to pursue such cases. All of the instances presented above were produced in common-sense violation of someone else’s copyright, but were cleared by the courts as protected appropriation art. Richard Prince has not always prevailed outright, but he has managed to settle out of court every time he didn’t win. It would be reasonable to assume that a company like Disney might consider it a moral imperative to protect their intellectual property against unfair use by Neo-Nazis, but with a conservatively calculable value in the hundreds of millions of dollars at stake, their reasonable budget for litigation easily outweighs any potential opposition. That’s not to say they won’t think pragmatically about the inherent challenges named herein, and there is no guarantee that legal action would remedy the situation. The Trump campaign received C & D orders from at least 29 recording artists, and despite threat of lawsuits demanding consent, there was no compliance.

There is no such thing as an airtight civil suit. A crafty defense attorney could litigate to a stalemate, which might result in an agreement for the defendant to not continue to promote the offending image themselves. That would not prevent the defendant from continuing to wear a store-bought Punisher Skull T-shirt, nor others from posting images in a context to which Disney and Marvel might rightfully object. Since civil suits don’t carry threat of imprisonment there is nothing to prevent a losing defendant from filing for bankruptcy, which doesn’t carry the same stigma that it once did. The last thing that Marvel wants is an outcome that would embolden, not dissuade, smug white nationalists, and so the most likely outcome is that they will do nothing. They might quietly let T-shirt licenses expire, or temporarily stop publishing the comic, or even put a media hold on the character pending reintroduction at a less intense time. But taking an official, public stance at this particular moment in time is objectively inadvisable.

Luckily, the person most connected to the largest audience for any Punisher media is taking his own stance against the co-opting of the logo. Actor Jon Bernthal, who portrayed Frank Castle in two seasons of Marvel’s The Punisher as well as in Daredevil Season 2, has very vocally condemned the Capital rioters and likely wants to continue playing the character that has given him the biggest recognition in a career that also includes The Walking Dead and The Wolf of Wall Street. He is a fan favorite who brings both a grittiness and a likability to a role that has been primarily one-note in the 1,2,3 feature films that preceded his Netflix series.

Bernthal is excellent as The Punisher, and though the future of the Netflix version of the Marvel Universe has become uncertain with the launch of the MCU on Disney+, there are plans to include actors from prior franchises in the official MCU. Sony’s untitled sequel to Spider-Man: Far From Home  has apparently re-cast both previous Spider-Men, Tobey Maguire and Andrew Garfield, alongside current wall-crawler Tom Holland and prior cinematic villains Doctor Octopus & Electro. Episode Four of WandaVision brought back support characters from Thor and Antman, heating up speculation that Charlie Cox may be reprising his role as Matt Murdock in the MCU as well. That certainly opens the door for other beloved characters from Daredevil, Luke Cage, and yes, The Punisher.

Any time a character is in the news, it elevates interest in (and pricing for) all of that character’s key issues. This past week, public attention and collector speculation helped set record pricing for the first appearance of The Punisher in Amazing Spider-Man #129 with a CGC 9.8 sale of $14,000. Subsequent ASM issues with The Punisher include #134, #135, #161, #162, #174 and #175. Looking at Bronze Age comic prices overall, all issues of Amazing Spider-Man are on the rise ahead of the rate of appreciation for other titles. That makes these issues a good investment in any grade. Marvel Premiere #2, which is the first telling of The Punisher’s origin (and fourth appearance overall), is still an incredibly undervalued key issue. Since it is a magazine from 1974, high-grade CGC copies are extremely rare, and this is also the first appearance of Howard Chaykin’s Dominic Fortune, providing multiple milestones in a single issue. That makes this an already pricey investment in high-grade, with the FMV of a 9.8 realistically at $1000, but lower grade copies are criminally undervalued, too. Giant Size Spider-Man #4 is frequently mislabeled as the 4th appearance of The Punisher (it is actually the 5th, arriving five months after Marvel Preview), but it is a classic cover and the square spines on Marvel’s Giant Size comics make finding high-grade copies a challenge. With a FMV above Marvel Preview, I’d opt for the Magazine instead, which is probably the most important Punisher key after ASM #129.

But the real Punisher key issue bargains are all five issues of the Punisher Limited Series from 1986, which marks the character’s first solo title, and the first time Mike Zeck drew him. It’s a landmark series that helped define the start of the Copper Age with air-brushed covers more reminiscent of Heavy Metal Magazine than a Marvel comic book. #1 is especially noteworthy for being the first issue of the first Punisher solo series. The grit that would become a trademark of the Ennis run fifteen years later traces back to this series which has weapons and tactics straight out of the Anarchist’s Cook Book and a totally hectic prison riot–preceding the one in Watchmen by more than a year. Writer Steven Grant updated the hardboiled edge of the old Ed McBain crime pulps to become one of the progenitors of a new nihilism that included the aforementioned Howard Chaykin and former Marvel scribe Frank Miller, whose own Batman: The Dark Knight Returns was still a few months from publication. Neo-noir novelist Andrew Vachss’ first Burke novel, Flood, had appeared mere months ahead of The Punisher #1, which would qualify the two works as contemporaneous and exposing the first threads of a trend developing in the zeitgeist.

The Punisher Limited Series was a different kind of origin story. It set the tone for the type of urban warfare that has become a Punisher staple by cribbing more elements from Guns & Ammo and Mack Bolan paperbacks (with explosive Gil Cohen painted covers) than from other contemporary superhero comics. The Punisher’s lone wolf nature clearly appealed to the same mentality that gave birth to the militia movement in this same time frame–when rising crime statistics nationwide inspired a growing sympathy for vigilantism. These are the tenets that are most appealing to the radical right, and these comics might someday find their way into comic book related Senate Sub-Committee hearings far more legitimate than those inspired by Frederic Wertham’s infamous Seduction of the Innocent back in 1954. If we look at the exponential differences in price between those crime comics from the Atomic Age that were featured in S.O.T.I. and those that were not, it makes an easy argument for stocking up on these. Click here to purchase a raw copy of #1.

In the right hands, any character can be great, but the opposite is also true. Right now we are seeing the wrong people rallying around the flaws of the character, which makes it all the more important to stress the good things that have helped readers connect to an anti-hero who we all want to believe skews more toward good than bad. It would be a travesty to not move forward, but it would be an even greater folly to move forward without a penitent correction.