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HQ 963158





January 14, 2000

CLA-2 RR:CR:GC 963158

CATEGORY: CLASSIFICATION

TARIFF NO.: 9703.00.00

Area Port Director
U.S. Customs Service
JFK Airport, Bldg #77
Jamaica, N. Y. 11430

RE: Internal Advice; Sotheby’s Inc.; Diego Giacometti; Criteria for Sculptures

Dear Area Director:

This is in response to the request of counsel for Sotheby’s Inc., dated July 7, 1999, for internal advice concerning the tariff clarification of imported articles in the form of furniture, claimed to qualify as original sculpture, free of duty, under heading 9703.00.00, Harmonize Tariff Schedule of the United States (HTSUS). The importer’s counsel further discussed the merits of his position in a meeting on November 30, 1999

FACTS:

The articles in question were imported for auction. The entry documentation indicates that the articles consist of bronze chairs, lamps, tables, foot stools, and other articles of furniture. There is a companion case pending at Headquarters for the same articles for valuation purposes (HQ 547381). This decision is limited to the classification issue.

Literature was submitted to support the claim that Diego Giacometti and his brother, Alberto Giacometti were renowned and recognized sculptors. For purposes of this decision, we accept the claim. The process of creating the articles is described in the literature as follows:

Diego Giacometti’s tables, lamps, chairs, and armchairs are unmistakably different and distinguishable at first sight from commercially produced furniture. This is due not just to the material, which is almost exclusively bronze, but to the way in which it is used. Unlike ordinary furniture, each piece of Diego Giacometti’s work is first moulded in clay or plaster in the same manner as a work of sculpture. The pieces all bear the traces of the hand of the artist and the fingers that pressed and kneaded the soft material into the desired form.

Also, it is stated that the casting is done in a foundry unlike furniture produced in the carpentry tradition.

The literature indicates that Diego and Alberto “began to make tables, lamps, chairs and other items of furniture at the beginning of the 1930s”...and the conditions which led them “to make utilitarian, albeit luxury, articles were to a large extent economic in nature.” The literature refers to “lampstands with the heads of young women in whose voluminous hair the electric socket was embedded” designed by the Diego brothers to furnish a home in London and “signed by the firm; it is not known how many copies were made”. The Diego brothers worked with interior designers to furnish homes of wealthy individuals.

Photostats of the articles, presumably of those covered by the consumption entry in question, depict standing bronze lamps 58 to 61 inches in height, with “sculptured women’s heads” with electrical fittings at the top of the lamps. One lamp indicates that it is available with the original shade. Some lamps and chairs are available in pairs. A stool (or chair) described as a “stool with winged figure ornament (pair available) gilded bronze 23 x 13 x 13 3/4 inches” with “winged figure ornament gilded bronze figure 3 inches”. The articles contain one or more 3-inch bronze ornaments of frogs, birds, mice, etc.

ISSUE:

Whether utilitarian articles created by professional sculptures may qualify as original sculptures and statuary, in any material, in heading 9703.00.00, HTSUS.

LAW AND ANALYSIS:

Heading 9703.00.00, HTSUS, provides for the free entry of original sculptures and statuary, in any material. Note 3, Chapter 97, HTSUS, states that

Heading 9703 does not apply to mass-produced reproductions or works of conventional craftsmanship of a commercial character, even if these articles are designed or created by artists. Emphasis added.

And, Additional U.S. Note 1, Chapter 97 states that

Heading 9703 covers not only original sculpture made by the sculptor, but also the first 12 castings, replicas or reproductions made from a sculptor's original work or model, by the sculptor himself or by another artist, with or without a change in scale and whether or not the sculptor is alive at the time the castings, replicas or reproductions are completed.

The applicable Customs Regulations, 19 CFR 10.48, provides as follows:

§_10.48 Engravings, sculptures, etc.
(a) Invoices covering works of art claimed to be free of duty under subheadings 9702.00.00 and 9703.00.00, HTSUS, shall show whether they are originals, replicas, reproductions, or copies, and also the name of the artist who produced them, unless upon examination the Customs officer is satisfied that such statement is not necessary to a proper determination of the facts. (b) The following evidence shall be filed in connection with the entry: A declaration in the following form by the artist who produced the article, or by the seller, shipper or importer, showing whether it is original, or in the case of sculpture, the original work or model, or one of the first twelve castings, replicas, or reproductions made from the original work or model; and in the case of etchings, engravings, woodcuts, lithographs, or prints made by other handtransfer processes, that they were printed by hand from handetched, handdrawn, or handengraved plates, stones, or blocks: I, _________ , do hereby declare that I am the producer, seller, shipper or importer of certain works of art, namely covered by the annexed invoice dated; that any sculptures or statuary included in that invoice are the original works or models or one of the first twelve castings, replicas, or reproductions made from the sculptor's original work or model; and that any etchings, engravings, woodcuts, lithographs, or prints made by other handtransfer processes included in that invoice were printed by hand from handetched, handdrawn, or handengraved plates, stones, or blocks. (c) The port director may waive the declaration requirement set forth in paragraph (b) of this section.

Although some of the import documents may refer to the articles as works of art and refer to the name of Diego Giacometti, there is no compliance with 19 CFR 10.48. Further, there is an indication that many of the articles were imported in pairs such as two tables with frogs and the literature indicates that it is not known how many copies were made of the articles. Accordingly, based on the documents submitted with the consumption entry, none of the articles qualify as original sculptures and statuary classified in heading 9703.00.00, HTSUS, within the requirements of Note 3, Chapter 97, HTSUS, Additional U.S. Note 1, Chapter 97, HTSUS, and 19 CFR 10.48.

No information has been submitted to show compliance with the above requirements, and we do not accept the position that utilitarian articles are covered by heading 9703.00.00, HTSUS.

The predecessor of the HTSUS, the Tariff Schedules of the United States (TSUS), contained a similar provision as contained in heading 9703.00.00, HTSUS. Item 765.15, TSUS, which provided for original sculptures and statuary (including the first 10 castings, replicas, or reproductions made from a sculptor’s original work or model with or without a change in scale and whether or not the sculptor is alive at the time the castings, replicas, or reproductions are completed) all the foregoing made in any form from any material as the professional productions of sculptors only, whether in round or in relief, and whether cut, carved or otherwise wrought by hand or cast. Essentially, with the exception of the increase from 10 to 12 copies, heading 9703.00.00, HTSUS, with the Chapter notes and applicable regulations, conforms to item 765.15, TSUS. However, the headnotes for item 765.15, TSUS, specifically excluded from coverage, “any articles of utility or for industrial use”. This specific wording of the exclusion of articles of utility is not found in heading 9703.00.00, HTSUS.

Accordingly, counsel is of the opinion that articles of utility are not excluded from heading 9703.00.00, HTSUS, and/or, that even under interpretations of the courts and Customs for item 765.15, TSUS, articles of utility were not excluded if the artistic character became “so compelling that the utilitarian achievement of the artisan is lost in the realized sentiment of the artist”, quoting U.S. v. Olivotti, 7 Ct of Cust. Appls. 46, T.D. 36309, (1916).

Olivotti, supra, concerned a marble font, found not to be a work of art, and marble seats. The marble seats or chairs were copies of an Grecian original found in a Vatican museum that were made by a sculptor. The end of the arm rests contained carved lions’ heads and paws. Paragraph 653 of the Tariff Act of 1913, a predecessor of heading 9703.00.00, HTSUS, provided for free entry of original sculpture and two reproductions that were not articles of utility. Sculptures that qualified for classification in paragraph 653 but exceeded the limitation for reproductions may be classified as statuary, sculptures or copies, in paragraph 376 of the Act of 1913. Paragraph 376 did not contain the “articles of utility” exclusion and did not require “originality”. The marble seats concerned classification under paragraph 376, not paragraph 653. Notwithstanding the absence of the utility exclusion, the court applied the utilitarian exclusion for sculptured articles. The reasoning of the court concerning utilitarian use follows:

These carvings, even if they could be regarded as demanding the exercise of sculptural art, were evidently designed as an embellishment of the seats, and it would be going far to say that of themselves they were sufficient to give the character of sculptures to the entirely of which they are a minor, not a predominating, part. It may be conceded for the purposes of this case that because of the sculptural work upon them, the articles under consideration have an artistic beauty which otherwise they would not possess. Nevertheless, no one gazing upon them can forget that they are seats or chairs, and that they are not the expression of the sculptor’s impulse to imitate some object in nature as he conceived it to be, but a conception brought to material form primarily and principally to serve a useful purpose, and not to please. The making of seats and chairs is strictly industrial, not sculptural, art; and when the sculptor’s hand is called upon to make such conveniences artistic and beautiful, his work reaches no higher plane than the purely decorative, unless it be so compelling that the utilitarian achievement of the artisan is lost in the realized sentiment of the artist....The seats here involved were not designed to serve as mere settings for whatever of sculptural work there may be upon them, but as seats to which such sculptural work clearly bears the relation of adornment and nothing more. They must, therefore, be classed as articles of utility produced by industrial art because of a sense of need or usefulness and not as sculptures or examples of fine art the activities of which are chiefly, if not wholly, called into play by sentiment and for the purpose of appealing to the emotions.

Downing v. U.S., 66 Cust. Ct. 33 (1971), supports the position that articles of utility were excluded under item 765.15, TSUS. This decision sums up the history of the utilitarian exclusion in the tariff acts prior to the HTSUS. Six oak door panels were removed from the doors of a church, shipped to England, used by a sculptor to carve bas-relief of sheep, and returned. The court held that the panels, as parts of doors before being carved and subsequently, were articles of utility and excluded under item 765.15, TSUS. The court noted the exception in U.S. v. Baumgarten, 2 Ct. Cust. Appls 32 (1911), in which the court found that the form of a vase was used by the artist merely as a support for the real work, of human figures surrounding the bowl of the vase and that the sculptor’s work was “so compelling that the utilitarian achievement of the artisan is lost in the realized sentiment of the artist, and therefor it was not an article of utility. The court also noted that in Olivotti, supra, the utility exclusion was applied notwithstanding that an expressed exclusion was not contained in the applicable statutory provision. The panels, as parts of doors, were articles of utility.

Notwithstanding the court decisions under TSUS and the prior tariff acts, counsel is of the opinion since there is no specific exclusion under heading 9703.00.00, HTSUS, articles of utility may be classified therein.

Note 3, Chapter 97, HTSUS, states that “ heading 9703 does not apply to mass-produced reproductions or works of conventional craftsmanship of a commercial character, even if these articles are designed or created by artists”. In addition, the Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and General Rules of Interpretation of the HTSUS, states that heading 9703
excludes the following articles, even if they are designed or created by artists:

(a) Ornamental sculptures of a commercial character. (b) Articles of personal adornment and other works of conventional craftsmanship of a commercial character (ornaments, religious effigies, etc.). (c) Massproduced reproductions in plaster, staff, cement, papier maché, etc.

The exclusions stated in Note 3, Chapter 97, HTSUS, and as enumerated by the EN’s, of “works of conventional craftsmanship” and/or “ornamental sculptures of a commercial character”, even if the articles are designed or created by artists (sculptors), equates to the exclusion of articles of utility.

New York Ruling Letter 889119, dated August 17, 1993, cited by counsel, limited the sculptures to furniture “that are not capable of any functional use”, that is to say, articles of utility are not covered under heading 9703.00.00, HTSUS.

We do not have a full description of all of the articles covered by the consumption entry and some of them may not be articles of utility. Sculptures created by Diego Giacometti that are not utilitarian articles may be classified in heading 9703.00.00, HTSUS, upon compliance with the requirements of Note 3, and additional U.S. Note 1, Chapter 97, HTSUS, and 19 CFR 10.48. The burden is upon the importer to show compliance with the requirements on a case by case basis.

HOLDING:

The articles in question, ornamental chairs, lamps, etc., created by professional sculptors and designed to be used as furniture, are excluded from heading 9703.00.00, HTSUS. This position is in harmony with the decisions of the courts, as discussed above, Note 3, Chapter 97, HTSUS, and our decisions under the HTSUS. (See recent Headquarters Ruling Letter 960924, dated September 15, 1999, and cases cited therein.

The articles are also precluded from heading 9703.00.00, HTSUS, by virtue of Additional U.S. Note 1, Chapter 97, HTSUS, and applicable regulations.

Our decision in this internal advice is limited to the applicability of heading 9703.00.00, HTSUS. A separate decision will be issued as HQ 547381 regarding the valuation issues.

We are sending a copy of this decision to counsel for the importer.

Sincerely,

John Durant, Director

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