HQ 080757: Decision on Application for Further Review of Protest No. 3801-6-001433

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                      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?
















                                         -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