HQ 0080757 - Decision on Application for Further Review of Protest No. 3801-6-001433 - United States International Trade Commision Rulings

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HQ 080757

April 11 1989

CLA-2 CO:R:C:G 080757 JLJ

CATEGORY: CLASSIFICATION

TARIFF NO.: 274.85

District Director of Customs
Patrick V. McNamara Building
477 Michigan Avenue
Detroit, Michigan 48226-2568

RE: Decision on Application for Further Review of Protest No. 3801-6-001433

Dear Sir:

This protest was filed against your decision in the liquidation of Detroit Entry No. 85-682190 of September 4, 1985, covering a shipment of K-Mart newspaper supplements from Canada.

This ruling concerns whether the instant advertising supple- ments are susceptible of authorship for the purposes of item 274.85, Tariff Schedules of the United States (TSUS).

FACTS:

The instant merchandise is a K-Mart advertising supplement for newspapers, printed in Canada by rotogravure process. A copy of one of the pages of the newspaper supplement was submitted along with this protest.

You liquidated the entry under the provision for printed matter not specially provided for, other, other, other, in item 274.90, TSUS.

The protestant's broker claims that the advertising supplements should be classified under the provision for printed matter not specially provided for, other, other, susceptible of authorship, in item 274.85, TSUS.

ISSUE:

Is the instant advertising supplement susceptible of author- ship for the purposes of item 274.85, TSUS?

LAW AND ANALYSIS:

You argue that the language of the inserts is fairly standard advertising jargon. You assert that the language is neither original nor worthy of the concept of authorship. You believe that the instant supplements are classified in item 274.90, TSUS.

The protestant's broker believes that the supplements are susceptible of authorship and that they are classified in item 274.85, TSUS. He cites Customs Headquarters Ruling Letter (HRL) 073190 of November 16, 1986, in support of his position.

Initially we note that HRL 073190 is not on point. HRL 073190 dealt with "Parade" magazine, which is so different in textual content from the instant advertising supplement that it is distinguishable.

HRL 078987 of September 29, 1987, addressed the issue of whether advertisements to be included with Sunday comic supplements were susceptible of authorship. It cited Oxford University Press, N.Y., Inc. v. United States, 33 CCPA 11, C.A.D. 309 (1945), which provides the following rule for matters pertaining to authorship:

... for a thing to be the work of an author, it must be something that is more or less the product of mental activity as distinguished from that which is purely mechanical.

In HRL 078987, we found that the advertising inserts required mental activity in their composition and arrangement, therefore they were classified in item 274.85, TSUS. We find that the instant advertising supplements also required mental activity to write and arrange; they are not purely mechanical. Inasmuch as the instant advertising supplements required thought to produce, they are susceptible of authorship and are classified in item 274.85, TSUS.

HOLDING:

The instant advertising supplements are classified under the provision for printed matter not specially provided for, other, other, susceptible of authorship, in item 274.85, TSUS. The protest should be approved in full. A copy of this decision should be sent to the protestant along with the CF 19 Notice of Action.

Sincerely,

John Durant, Director

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