HQ 458172: Suspected copyright infringement of Sequins International Inc. compilation of embroideredsequins patterns (U.S. Copyright Office Registration No. TXu 197-291, unpublished; CustomsIssuance Recordation Issuance No. 88-069)

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 458172

January 10, 1995

CPR-3     CO:R:IT:I 458172  VEA

CATEGORY: Copyright

Area Director of Customs 
U.S. Customs
Routes 1 & 9 South
Room 200
Newark, New Jersey  07114

RE:  Suspected copyright infringement of Sequins International Inc. compilation of embroidered
sequins patterns (U.S. Copyright Office Registration No. TXu 197-291, unpublished; Customs
Issuance Recordation Issuance No. 88-069)

Dear Madam:

     This is in response to your memorandum dated May 16, 1994, in which you forward the
file on entry no. 311-0115445-3 to the Office of Regulations and Rulings (Intellectual Property
Rights Branch) pursuant to 19 C.F.R. Section 133.43(c)(1) of the Customs Regulations for a
decision on alleged infringement of the above referenced copyright owned by Sequins International
Incorporated.

FACTS: 

     The Entry documents indicate that on December 12, 1993, forty-eight cartons of
embroidered sequined fabric were imported by Zelouf International Corporation from Korea.  The
goods arrived at the port of Newark, New Jersey on December 20, 1993.  Customs officers
detained the shipment on the suspicion that it infringed pattern # 2140 which is included in a
compilation of embroidered sequin patterns registered with the U.S. Copyright Office and
recorded with Customs.

     In a letter dated December 22, 1993, Customs notified the importer that the imported
goods were suspected of infringing a copyright owned by Sequins International Incorporated.  The
importer denied infringement.  Pursuant to 19 C.F.R. Section 133.43(b) of the Customs
Regulations, Customs notified the copyright owner of the detention.  The copyright owner,
through counsel, filed a written demand requesting that Customs deny entry to the goods and
deposited a bond in the amount of $77,011.00.

     Pursuant to T.D. 93-87 (Exchange of Briefs in Copyright Infringement Actions), the
importer and copyright owner were given an opportunity to exchange briefs and related materials
prior to providing them to Customs.  In accordance with Section 133.43(c)(1), the file was
forwarded to Customs Headquarters for a decision on the infringement issue.

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     The copyright at issue is a compilation of unpublished embroidered sequin patterns
registered with the U.S. Copyright Office as TXu 197-291 and recorded with Customs under
Recordation No. 88-069.  The particular pattern at issue,#2140, consists of horizontal rows of
black sequins placed on a swatch of nylon fabric.   

ISSUE:

Whether the imported embroidered fabric infringes pattern # 2140 owned by Sequins
International Incorporated?           

LAW AND ANALYSIS:

     Section 602(b) of the Copyright Act, 17 U.S.C. Section 602(b), prohibits the importation of
articles which infringe a copyright.  Section 603(b)(2) requires that the person seeking exclusion of
infringing merchandise pursuant to Section 602(b) furnish proof of a specified nature and in
accordance with prescribed procedures, that the copyright in which such person claims an interest
is valid and that the importation would violate the prohibition in Section 602 of the Copyright Act.

     Section 102(a) of the Copyright Act, 17 U.S.C. Section 102(a), states that copyright
protection subsists, in accordance with this title, in original works of authorship fixed in any tangible
medium of expression, now known or later developed....  Section 103(a) provides that
compilations and derivative works are included in the works which are copyrightable under Section
102.  The Copyright Act defines a "compilation" as a work formed by the collection and
assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a
way that the resulting work as a whole constitutes an original work of authorship. 17 U.S.C.
Section 101.  

     In interpreting Section 102(a), courts have held that to receive copyright protection a work
must be original and also possess a minimal level of creativity. JonWoods Fashions, Inc. v.Donald
C. Curran, 8 U.S.P.Q. 2d 1870 (1988); Thomas Wilson & Co.v.Irving J.Dorfman Co.,433 F. 2d
409 (2d Cir. 1970).  See also M.Nimmer, Nimmer on Copyright, Section201[A] at 2-8 (1979 ed.). 
To be "original" the work need not be novel, but rather only belong to the author and not copied
from another.  L.Batlin & Sons,Inc.v.Snyder,536 F. 2d 486 (2d Cir. 1976).  A work may be
entirely the product of the claimant's independent efforts and original, but still be denied protection
if it lacks any creativity.  Nimmer, Section 2.08 (B)(3).

     These principles have also been applied by courts in cases where the copyrighted work is a
compilation.  See Feist Publications Inc. v Rural Telephone Service.,Co., Inc., 499 U.S. 340, 113
S. Ct. 1282 (1991).  Feist involved an action for copyright infringement of listings obtained from 

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the white pages of a local telephone directory which were compiled into another directory.  The
court held that although a valid copyright existed in the telephone directory as a whole, the white
pages were not entitled to protection because the raw data that they contained was not arranged
in an original or creative way.  It noted that "the mere fact that a work is copyrighted does not
mean that every element of the work may be protected.  Originality remains the sine qua non of
copyright; accordingly, copyright protection may extend only to those components of a work that
are original to the author." 

     Applying the above principles to this case, we find that the compilation of sequined patterns
registered as a claim to copyright with the U.S. Copyright Office may be entitled to protection. 
However, as a separate work, pattern #2140 is not entitled to copyright protection.  Pattern #
2140 consists of horizontal rows of sequins placed on a piece of nylon fabric which are connected
by thin pieces of black thread.  The sequins are not arranged in a particular pattern or design and
are simply sewn together on the fabric.  Since there is nothing novel or creative about arranging
sequins in horizontal rows, pattern # 2140 clearly lacks even the minimal degree of creativity or
originality required for protection under the Copyright Act. 
      
     Also, it is our understanding based on consultations with representatives from the U.S.
Copyright Office, which is responsible for registering copyrights, that it takes the position that
although an unpublished collection of items as a whole may support a claim to copyright, there
may be items in the collection, if considered separately, which would not support a separate claim
to copyright.  Thus, if any of the items are used individually, outside of the context of the
collection, they might not be protected by copyright.              

     Finally, the copyright owner notes in its brief that U.S. Customs upheld the validity of this
compilation in a 1990 ruling letter (HQ  File 73294) which stated that the copyright protects not
only the arrangement of the works reproduced in the catalogue but the works themselves.  The
issue was whether Customs would protect the compilation or catalog of sequin patterns registered
as TXu 197-291.  Although we held that the registered copyright for the compilation should be
given full protection, we also noted that "the Copyright Act provides protection for all the
copyrightable component parts of the thing copyrighted, and the proprietor has all the rights in
respect thereto which he would have, if each part were individually copyrighted under the act "
(emphasis added).  Including this language in the ruling clearly reflects Customs position that the
component parts of a copyrighted work must also be copyrightable in order to be protected.     


                              - 4 -


HOLDING:

     We find that the imported articles do not infringe the copyright recorded with U.S.
Customs and are not subject to seizure and forfeiture under 17 U.S.C. Section 603 because as a
separate work, sequined pattern #2140 does not possess the minimal degree of creativity
required for copyright protection.  Pursuant to 19 C.F.R. Section 133.44(b), the District Director
shall release all detained merchandise and transmit the copyright owner's bond to the importer. 
Copies of this decision should be provided to all interested parties.     
  



                         John F. Atwood, Chief
                         Intellectual Property Rights Branch