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HQ 460269




COP-1 RR:IT:IP 460269

CATEGORY: COPYRIGHT

Mr. Bruce N. Shulman
Stein, Shostak, Shostak & O'Hara
1620 L Street, Suite 807
Washington, D.C. 20036-5605

RE: Piratical copies; Lace bibs; Battenburg Lace Doilies

Dear Mr. Shulman:

This is in response to your letter regarding certain lace doilies, lace bibs and suspect importations of same.

FACTS:

Copyright registration VA 557-136 is claimed by Wimpole Street, Inc. The copyright has been recorded with Customs, recordation number COP 93-00229. The registration covers certain lace doilies in a Battenburg pattern. A copy of the recordation issuance accompanied your letter.

Copyright registration TX 3 263 631 is claimed by Wimpole Street, Inc., and has not been recorded with Customs. The registration is for the "Babies in Battenburg Pattern Book" and covers the pattern book as evidenced by the "TX" prefix to the registration number. A copy of the registration certificate accompanied your letter. Selected pages from the Wimpole Street catalog, also accompanying your letter, depict lace bibs of which one appears to be based on the doily pattern copyright recorded with Customs (COP 93-00229). We note that the Wimpole bib is shown as a line drawing, rather than an actual photograph.

You believe that certain lace bibs being sold by a third party are piratical of Wimpole Street's copyrighted work(s). Attached to your letter are pages from the third party's catalog, a copy of a photograph of the suspect bib, and invoices from the third party for an actual bib purchased from the third party. Your letter does not provide the basis for your assertion that the bibs are imported into the United States.

ISSUE:

Are the suspect bibs piratical of the copyright claimed by Wimpole Street?

Assuming that the bibs are piratical, are they subject to the laws governing Customs' enforcement against piratical items?

LAW AND ANALYSIS:

In Customs Headquarters Ruling Letter ("HQ") 732914, we stated:

The Copyright Act defines a "collective work" as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works themselves, are assembled into a collective whole.: 17 U.S.C. ?101. Catalogues can be regarded as collective works for the purpose of copyright protection.

In your letter, you point out that the copyright certificate at issue pertains to sequins patterns that are arranged in a catalogue. You note that copyright for a catalogue containing the works of several authors generally protects that particular arrangement of the articles depicted in the catalogue and not the articles themselves. See 17 U.S.C. ?202(c) ("Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution.").

Often, however, when a single statutory "author" applies for copyright protection for several works, (eg. A group of songs, poems, or drawings), the author will assemble representations of those works into a volume or "catalogue," rather than applying for several individual registration certificates. In that situation, the copyright protects not only the arrangement of the works reproduced in the catalogue but the works themselves. Walco Products, Inc. V. Kittay & Blitz, Inc., 354 F. Supp. 121, 125 (S.D.N.Y. 1972) ("The Copyright Act . . . protects each of the component portions of a catalogue."). [additional citations omitted]

Sequins International, as the "author" of each of the sequin patterns, applied for and was granted copyright protection under a single title. When determining the type of protection to be given to intellectual property rights registered with Customs, we are guided by valid certificates as they are issued. In this case, there is no apparent reason why the copyright registered with Customs should not be given full protection. Therefore, products which infringe the Sequins International catalogue or the designs reproduced therein will be subject to seizure.

In this case, Wimpole Street has obtained a valid copyright registration for the "Babies in Battenburg Lace Pattern Book" ("pattern book" copyright), a collective work as defined by the Copyright Act. And, under the rationale of HQ 732914, products which infringe the designs therein will be subject to seizure. We note that the pattern book copyright has not been recorded with Customs, and as a result only clearly piratical products will be subject to seizure. We encourage Wimpole Street to record the pattern book with Customs to obtain the full protection afforded to possibly as well as clearly piratical copies of the designs.

Inasmuch as the genuine lace bib, as well as the suspect lace bib are reproduced only in photocopied photographs, we request that actual samples of the articles be provided to this office. Because the test for piracy involves comparison of the protected and suspect works, and because the detail of each item cannot be seen in the photocopies, we cannot determine with certainty at this time that the suspect bibs are clearly piratical.

Finally, your letter did not provide a basis for determining whether the suspect goods are imported. To fully protect the copyrighted work(s), Customs requires as much information as possible about the goods. Specifically, requests such as this should provide the suspected sources of manufacture, specifically named suspect importers with addresses, possible tariff classifications and other information that will assist in identifying infringing imports as well as distinguishing genuine articles. We have notified Customs field offices that such goods should be detained for a detailed comparison, and will update that notification if additional information can be made available.

HOLDING:

Based on the information provided, the suspect lace bibs may be piratical of one or more copyrighted works owned by Wimpole Street. The goods may be detained if offered for entry into the United States.

Assuming that the imported goods are found to be piratical or possibly piratical of the copyrighted work(s), the detention and seizure authorities afforded Customs may be invoked.

Sincerely,

John F. Atwood, Chief
Intellectual Property Rights Branch

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