HQ 080757
April 11 1989
CLA-2 CO:R:C:G 080757 JLJ
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?
-2-
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.
-3-
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
Commercial Rulings Division
6cc: A.D. N.Y. Seaport
(NIS-234)
2cc: Chief, CIE
1cc: Reg. Comm., N.C. Reg.
1cc: J. Durant
JLJohnson:tj:typed 07/15/88