"The truth is that from beginning to end I'd have liked this story to take place in Disneyland. I could have written it, too, if only my optimism had been justified, and we'd loved every minute of it." - Richard Beard, THE CARTOONIST

I was reminded of this passage by Princess Diana. It's a slightly tenuous link, I admit, but I still think it's interesting.

As you probably already know, Marvel recently announced that it was going to run a storyline in X-STATIX where Princess Diana would return from the dead, as superheroes do, and join the eponymous team. Shortly afterwards, they decided that all things considered, they wouldn't.

Except strictly speaking, they're doing nothing of the sort. They're running the same story, with the names changed. The revised solicitation simply refers to "a Princess", and retitles the storyline "Back From The Dead". (It was previously announced as "Di Another Day".) But it's the same actual story. It just won't strictly speaking have Princess Diana in it. It'll have somebody very, very like her. Very like her indeed. But it won't be her.

Does it matter?

Clearly it's premature to speculate on just how gratuitous the original storyline actually was. Obviously it was at least partly expected to grab attention and create a bit of controversy. Equally obviously, the reaction Marvel got was either harsher than they anticipated, or aroused the attention of somebody higher up in the organisation with a more conservative attitude to risk. (Or, perhaps, anguished screams that this was certainly not the sort of story that should be associated, however indirectly, with a cash cow property like the X-Men.)

'It was at least partly expected to grab attention and create a controversy.' An arguable case can certainly be made that the idea is tasteless. But it's debatable whether good taste and artistic quality have much connection. Besides, it would hardly be the first tacky Royal Family cash-in.

And Peter Milligan's original explanation of the storyline (in a fabulously immodest article where he describes his own work as "groundbreaking") is not implausible by any means. His work on the series has always been about celebrity and the explicit manipulation of reader expectations. It's by no means an irrational extrapolation from what came before.

Regardless of all that, the official line is that "Although the character choice in the story stirred a lot of interest and controversy, this is still a tale that can be told without the presence of a well-known personality." Call me picky, but this is not wholly convincing. You "can" go from Glasgow to London via Vladivostok. You "can" write an entire novel without using the letter E (really, you can). And perhaps you "can" tell the story without the character who was the central concept, but that doesn't necessarily make it a good idea to do so.

Which brings me back to THE CARTOONIST.

The novel involves narrator Daniel being dragged to France by his anarchic teenage cousin Daphne, who plans acts of social sabotage in Disneyland Paris. At the end of the first part of the book, the characters arrive at the gates of Disneyland, whereupon the book promptly implodes in a cloud of metafiction and embarks on a four-page rant about the nature of its own reality.

The problem, Daniel explains, is that he is unfortunately unable to bring us the story he originally wanted to tell, due to it involving an awfully large number of Disney trademarks. It may be a public place, and the Disney characters may be part of the universally known cultural landscape, but he's just not allowed to write about that.

'You can't create a stand-in Disneyland. There is only one Disney.' "I don't claim to have had an opinion. All I wanted was to tell my story. Only I now discover that my version of a straight story in this Disney-owned part of the known world is disallowed. The Happiest Place on Earth. Copyrighted, trademarked, withdrawn in the untouchable name of trade. I'm not allowed to reproduce their language, nor any images from inside the park. That's the law. It's a brick wall, and there's no getting past it, not even in cartoons, which therefore fail at Walt's ideal of 'everything the mind of man can conceive.'"

With that in mind, and "after discussions with lawyers and many months of careful consideration", Daniel decides that his memory must be mistaken. He and Daphne turn around and head to a fictional theme park down the road. Of course, the problem for Daniel - and his author - is that you just can't create a stand-in Disneyland. There is only one Disney. It's a brand so powerful that it's seared into the subconscious of everyone in the western world. Nothing else will ever carry the same resonance. And indeed, Daniel's alternative - "Yurayama", a European history theme park - quite explicitly and openly doesn't.

"The world we actually live in," writes Daniel, "is frequently forbidden as background. What this means is that before long all non-corporate stories will have to take place exclusively in unrecognisable places. As realism is gradually disallowed, by law, then stories other than theirs begin to distort, and sound like they never happened."

He's writing about legal barriers, rather than considerations of taste (or more accurately, perceived commercial pressures). But the point remains similar. One of the things that is most strikingly unusual about the idea of using Princess Diana in a superhero story is easily overlooked. It is not the idea of turning her into a superhero. It is the idea of using her at all. For all that self-promoting individuals and brand-building businesses consciously and deliberately promote their way into the fabric of the world, they rarely make it into fiction.

'Most of the areas of law that give rise to concern are at root legitimate.' There are exceptions. You'll see the occasional film based on the living - if the story has been heavily checked against the possibility of libel, and frequently after the central character has been handsomely paid. You'll get literal versions of the lives of extremely public figures, where the material is already public domain anyway; again, these rarely have much going for them in the way of artistic innovation. And if it's brands you want, you'll find a ton of them in the cinema, usually helpfully positioned facing the camera. Literal versions of the provable truth, and advertising, are okay. But if you want to draw on the resonances which people and brands have acquired as part of society, in a less literal way, then you may have difficulties.

Incidentally, bringing us back to comics, SANDMAN had a similar reluctance to use the Disney name. That's why there's a serial killer called "Funland" in one storyline who goes to an anonymous theme park and has a hat which is similar to mouse ears, but isn't. Does the point get across? Sure. But is it muted? Certainly.

Of course, most of the areas of law that give rise to concern are at root legitimate. There's a basically sound reason for trademark law - to prevent people passing off their product as somebody else's. There's a basically sound reason for copyright - to make sure that the person who created something should profit from it. And there's a basically sound reason for the law of defamation, which shouldn't be undermined by letting people change a couple of vowels and covering the allegation under a transparently thin layer of fiction.

Image rights... well, I've never been convinced about those. They don't really exist as such in the UK. Broadly, the UK courts will allow celebrities to stop their image being used in a way that implies endorsement or official merchandise. That strikes me as pretty much sufficient to meet any legitimate concerns.

There's a huge area of middle ground where the use of real people and brands in fiction doesn't impact on their legitimate concerns. Diana, legally, would seem to have been on fairly safe ground - she's dead, she can't sue, and because she's an English national, her executors presumably can't assert any image rights. They've tried to achieve similar effects through trademark law, and it didn't work out too well.

Tacky as the idea might have been, maybe it's something we ought to see more of. This one just managed to dodge the legal bullets to get as far as solicitation before it got shot down from another angle entirely.

Paul O'Brien is the author of the weekly X-AXIS comics review.

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