States v. States

22 C.C.P.A. 1, 1934 CCPA LEXIS 126

• Court: Court of Customs and Patent Appeals
• Decided: April 16, 1934
• Docket: No. 3704; No. 3705
• Status: Published

Opinions

Graham, Presiding Judge,

delivered the opinion of the court:

The appellant imported at the port of New York, under the Tariff Act of 1922, certain merchandise, described by the appraiser in his answer to the protest as “vases, boxes, and other articles composed in chief value of blown and decorated glass.” The particular articles involved in this importation are two glass vases, the product of one Henri Navarre. These were classified by the collector as decorated or ornamented glassware, under paragraph 218 of the Tariff Act of 1922. The importer protested, claiming them to be dutiable at 20 per centum under paragraph 1449, with other alternative claims which-are not before us.

The appellant also imported at the same port, under the Tariff Act of 1930, certain other merchandise stated by the appraiser, in his answer to the protest, to be “articles of colored glass ”, which was classified by the collector as decorated or ornamented glass articles under' paragraph 218 (f) of the Tariff Act of 1930. The importer protested, claiming the articles to be dutiable under paragraph 1647, or free of duty under paragraph 1807 of the Tariff Act of 1930.

The trial court held, in part:

* * * we find that the weight of the evidence establishes that the three samples produced for the inspection of the court and received as Exhibits 1, 2, and 3, are works of the free fine arts, not specially provided for, and that all articles represented by these exhibits are dutiable at 20 per centum ad valorem under paragraph 1449 of the Tariff Act of 1922 or paragraph 1547 of the Tariff Act of 1930. Citing Thomas v. United States, Abstract 47325. The protests are sustained to-this extent. With respect to all other articles involved, samples thereof not having been produced for the inspection of the court, we find that plaintiff has failed: to sustain her burden of proof, and the protests are overruled accordingly.

The court also refused to consider the photographs introduced, stating:

* * * It has been held consistently that photographs of imported articles are not sufficiently competent evidence to establish that the articles illustrated thereby are works of art within the meaning of the tariff acts. Citing Marshall Field v. United States, 5 Ct. Cust. Appls. 191, T.D. 34324; Friedlaender v. United States, T.D. 43393; Wanamaker v. United States, T.D. 44115; and Friedlaender v. United States, 19 C.C.P.A. 198, T.D. 45295.

Both parties have appealed from the resulting judgment. The Government alleges error in sustaining the protests to any extent. The importer alleges error in. the refusal of the court to find all the articles dutiable, as claimed, under paragraph 1449 of the Tariff Act of 1922, or under paragraph 1547 of the Tariff Act of 1930.

The relevant provisions of the paragraphs involved are as follows:

Par. 218. * * * and all articles of every description not specially provided for, composed wholly or in chief value of glass or paste, * * * decorated or ornamented in any manner, whether filled or unfilled, or whether their contenta be dutiable or free, 55 per centum ad valorem * * *.

Par. 1449. Works of art, including paintings in oil or water colors, pastels, pen and ink drawings, and copies, replicas, or reproductions of any of the same; statuary, sculptures, or copies, replicas, or reproductions thereof; and etchings and engravings; all the foregoing, not specially provided for, 20 per centum ad valorem.

Par. 218. (f) * * * and all articles of every description not specially provided for, composed wholly or in chief value of glass, * * * decorated, or ornamented in any manner, whether filled or unfilled, or whether their contents be dutiable or free, 60 per centum ad valorem.

Par. 1547. (a) Works of art, including (1) paintings in oil or water colors, pastels, pen and ink drawings, and copies, replicas, or reproductions of any of the same, (2) statuary, sculptures, or copies, replicas, or reproductions thereof, valued at not less than $2.50, and (3) etchings and engravings, all the foregoing, not specially provided for, 20 per centum ad valorem.

Three of the articles included in the second importation, known as Exhibits 1' 2, and 3, together with the photographs of several others of the same shipment, were introduced in evidence in the trial court and are here with the record.

Exhibits, 1, 2, and 3 are in the form of vases. Exhibit 1 is about 13 inches high and approximately 5% inches in diameter. It has a smaller base, about 3h inches in diameter, above which the article widens to its extreme diameter and then tapers somewhat toward the top. The top rim is rounded, and horizontally surrounding the article are a number of concentric ridges, with like ridges on each side of the article, extending vertically. In color it is greenish, and has irregular splotches of dark pigment scattered through it. The bottom is ground off flat.

Exhibit 2 is about 7 inches in height and 5 inches in diameter, and is similarly colored and has similar concentric ridges.

Exhibit 3 is about 8% inches in height, with an extreme diameter of about 6 inches and has a ground bottom. It has a representation of a compound leaf on each side of the upper portion thereof, and has three concentric ridges around its base. The glass is clear, but has many small air bubbles contained in its substance.

The other articles, as shown by the photographs, are a deep dish, a flask-shaped article, a vase with fluted leaflike decorations on the side, a vase with larger leaflike protuberances on the side, and an article having a truncated ovoid base portion and a long extended portion simulating tbe neck and bead of a swan, or other similar bird. These are all made of glass.

The testimony shows that these products are made by a French sculptor by the name of Henri Navarre, and each of them has his signature scratched in the bottom. In making them Navarre, who is shown by the testimony to be a sculptor of note and reputation, has a workman insert a long rod, called a pontil, into the liquid glass, and an amount of molten glass, sufficiently solidified to adhere to the rod, is taken out. Navarre then, with wooden spatulas and a hammer, shapes this glass, before it cools, into the form which he desires to make. He also, at the same time, introduces the coloring matter and the bubbles of air. The introduction of the color and air bubbles, and his technique of leaving the surface of his artifacts smooth, constitutes a secret process which Navarre will not permit the public to inspect.

The record shows that there are at least two other producers of this kind of material — those produced at the LaLique factory, in France, and those produced by a man by the name of Melle, and that the process is a new one, only having been invented and practiced in very recent times.

There is no evidence in the record that these objects are not articles of utility.

On the trial below, three witnesses were called by the importer in an effort to establish that the imported articles in question here are works of art within the purview of said paragraphs 1449 and 1547. The first of these was Walter L. Ehrich, the president of the Ehrich Galleries, associated with the business of the importer. The witness identified the exhibits and -stated that they were .from the second importation, including those shown in the .photographic exhibits. This witness stated that he was acquainted with Henri Navarre, and that Navarre was a “very famous French sculptor.” The witness then detailed several works of sculpture which Navarre had constructed of stone or bronze. Ehrich stated that he had made a study of art, principally by visiting museums, buying and selling objects of art, going to lectures, reading books and visiting artists’ studios. He stated that in his opinion the articles represented by the exhibits were works of art. A part of his examination was as follows:

X Q. From your knowledge of art, when was the first time you heard of glass being sculpture¶ — A. About, let’s seo, I think it was in 1917 or 1918, tha+ :s when the market began working in glass sculpture.

X Q. Do you know how they are made? — -A. 'Yes.

X Q. How? — A. The molten mass of metal, or glass rather, whxeh is treated as a metal, is modeled by wooden spatulas by the artist himself. He works it with his wooden spatula, just as a sculptor or the same sculptor may work and model a piece of gold or wax, exactly the same principle. (Italics ours.)

W. Frank Purdy testified that be was acting as executive secretary for tbe Antique and Decorative Art Studios, and that before his service as such he was owner and director of the School of American Sculpture, and was one of the original founders of the Grand Central Art Gallery in charge of sculpture, and before that was director of the Gorham Galleries of Sculpture for several years; that he had written and lectured on sculpture and had specialized in the development of American sculpture, and had lectured on art at various •places. He stated that he had seen the exhibits- in this- case at an exhibition and that in his opinion, they were works of art. He stated, in giving his reasons for this conclusion:

Q. Is it based upon things within your own knowledge? — A. Yes. As an example, I get a thrill out of all the N avarre things because it is to me, a unique medium for rendering the sculptor’s art. (Italics ours.)

He further stated that he had never seen any examples of Navarre’s work in museums, and that he did not think they had been on the market.

Charles Messer Stow stated that he was connected with the antiques and decorations department of the New York Sun, and had been for four years; that he had had a great deal of experience with glass and had specialized in glass from a decorative and antiquarian standpoint for about 11 years; that he had studied and read on the subject of glass and had lectured thereon. As to the exhibits, he expressed the opinion that they were works of art. He stated further that in his opinion it would take an artist to design and conceive the decorations of the imported articles.

Some question has arisen as to the weight to be given to the photographic exhibits, Illustrative Exhibits A, B, and C. This court has never held such photographs to be inadmissible, but has indicated, in some cases, that such photographs, standing alone, are not sufficient upon which a witness, without other knowledge on the subject, may pronounce the objects shown by such photographs to be works of art. This was the holding in Marshall Field v. United States and Friedlaender Co. v. United States, supra. However, such was not the case here. At least two of the witnesses had seen the imported articles and knew of their method of construction. The photographs were admissible, to be given such weight as they are entitled to in connection with the other testimony, as to the character of the imported articles.

Observers of the imported articles will doubtless differ as to their artistic quality. However, a view of them results in the conclusion that they lack much of the aesthetic appeal which is ordinarily associated with works of the fine arts. Laying aside the mechanical dexterity which is used by the maker of these articles in modeling and shaping a molten mass of glass, and eliminating the secret processes which he has invented, of adding color and air bubbles, we think it may be fairly said that these articles have no greater appeal to the sense of the beautiful and artistic than do other glass articles made by skilled artisans.

We are of the opinion that, under the uniform decisions of this court, these imported articles belong, not. in the classification of works of art, but rather in the classification which relates to articles of the decorative arts.

The testimony of the witnesses and the conclusion of the court below seem to have been along the line that these articles come within that part of the language of paragraph 1449 of the Tariff Act of 1922, and of paragraph 1547 of the Tariff Act of 1930, namely, "statuary, sculptures, or copies, replicas, or reproductions thereof.”

In United States v. Olivotti & Co., 7 Ct. Cust. Appls. 46, T.D. 36309, we had before us a marble font, two marble boxes and stands, and two marble seats, which were classified as manufactures of marble and claimed to be dutiable under paragraph 376 of the tariff act of October 3, 1913, the predecessor of said paragraphs 1449 and 1547. These were held by the trial court to be works of art, that is, sculptures, following the opinion of the Board in the protest of Downing & Co., T.D. 35564, where a facsimile of a so-called “Greek Temple” was imported, about which it was said that if the same was dutiable as a work of art at all, it was because it was a sculpture. In deciding the Olivotti case, this court discussed, at some length, the meaning and language of the works of art paragraph involved. Smith, Judge, delivering the opinion of the court, said, in part, as follows:

It appears from the photographs in evidence that the font is a plain marble basin, supported bjr a long, slender, tapering column, which is sustained by a short, round pillar of smaller diameter. The short pillar springs from an annular base which rests on a plain, square slab of marble. The surface- of the long, tapering column is ornamented by carvings suggestive of leaves. The font was made by Molonari, a sculptor, and was copied by him from an original found in one of the churches of Italy; but whether the original was the work of a sculptor does not appear. The production is the work of a sculptor. It is fashioned from the solid marble. It may be conceded that it is artistic and beautiful. Nevertheless, those conditions, or, better said, those distinguishing features of the article, are not sufficient of themselves to constitute a sculpture. Sculpture as an art is that branch of the free fine arts which chisels or carves out of stone or other solid material or models in clay or other plastic substance for subsequent reproduction by carving or casting, imitations of natural objects, chiefly the human form, and represents such objects in their true proportions of length, breadth, and thickness, or of length and breadth only. Standard Dictionary; Century Dictionary; United States v. Downing & Co. (6 Ct. Cust. Appls., 545; T.D. 36197); Stern v. United States (3 Ct. Cust. Appls., 124, 126; T.D. 32381); United States v. Baumgarten (2 Ct. Cust. Appls., 321, 322; T.D. 32052). It can not be said that the font, considered as an entirety, portrays any natural object. The surface of the tapering column which supports the plain marble basin is carved, it is true, with a representation suggestive of leaves, but that representation is so plainly ornamental and so clearly incidental that it can scarcely be regarded as sculpture and much less as giving that status to the ■whole article. Indeed, as appears from the photograph in evidence and the testimony in the case, that which makes the font artistic and beautiful is the purity of its lines and its just proportions, and not the carving on the column, which we think must be regarded at best as decorative and not sculptural a.rt.

Finding, as we do, that the font is not sculpture, the nest question which arises is, Can it, because of its beauty and artistic character, be classified as a work of art within the meaning of paragraph 376? We think not. In our opinion, the expression.“works of art” as used in paragraph 376 was not designed by Congress to cover the whole range of the beautiful and artistic, but only those productions of the artist which are something more than ornamental or decorative and which may be properly ranked as examples of the free fine arts, or possibly that class only of the free fine arts imitative of natural objects as the artist sees them, and appealing to the emotions through the eye alone. The potter, the glassmaker, the goldsmith, the weaver, the needlewoman, the lace .maker, the woodworker, the jeweler, all produce things which are both artistic and beautiful. It can hardly be seriously contended, however, that it was the legislative purpose to include such things, beautiful and artistic though they may he, in a provision which, as shown by its history and the enumeration therein contained, was intended to favor that particular kind of art of which painting and sculpture are the types. See Lazarus v. United States (2 Ct. Cust. Appls., 508, 509; T.D. 32247); United States v. Downing (6 Ct. Cust. Appls., 545; T.D. 36197).

That everything artistic and beautiful can not be classed as fine art was well established in United States v. Perry, which involved the classification of painted glass windows on which were represented by artists of superior merit, pictures of the saints and other biblical subjects. In that case it was held by the Supreme Court that the windows were not paintings and that, although they were artistic in the cense that they were beautiful, they were representative of the decorative and industrial rather than of the fine arts. United States v. Perry (146 U.S., 71, 74).

Notable in this decision is the definition of sculpture. Measuring the articles here involved by the language of Judge Smith above •quoted, it is at once evident that the imported articles are not sculptures. This court has never departed from its views as expressed in the Olivotti case, and has always drawn a clear distinction between works of the free fine arts and those which are properly classifiable as the work of the artisan. Our last expression on the subject is United States v. Columbo Co., 21 C.C.P.A. (Customs) 177, T.D. 46510 in which case certiorari was denied by the Supreme Court, October 16, 1933, 290 U.S. 673.

Paragraph 218 of the Tariff Act of 1922 provides for glass articles of all kinds—

blown or partly blown in the mold or otherwise, or colored, cut, engraved, etched, frosted, gilded, ground .* * * painted, printed in any manner, sand-blasted, silvered, stained, or decorated or ornamented in any manner.

Paragraph 218 (f) of the Tariff Act of 1930, under which a part of these articles were classified, has substantially the same language. This definitely includes the articles in issue here, unless by virtue of the particular quality of the same they may be removed into the classification of works of art. The thought occurs that if these, because they are tbe handiwork of an artist, are thus removed, why should other more artistic and beautiful creations of the glass blower not be likewise removed? It must be admitted that such artistic and beautiful creations as were considered in the Olivotti case may be created by the artisan, and it must be further conceded that it was intended that these dutiable provisions for glassware, to which attention has just been called, were intended to cover the same. Does the mere fact that an artist makes one article and an artisan makes another, render one a work of art and the other a manufacture of glass? We cannot come to this conclusion.

The courts, so far as we are advised, when called upon to construe provisions of tariff acts relative to works of the fine arts, have always entertained the view that the fine arts are such as are principally exemplified by painting and sculpture. The Supreme Court, in United States v. Perry, 146 U.S. 71, expressed its views thus, in making an analysis of the distinctions between works of art and art objects, under the tariff act of October 1, 1890:

For most practical purposes works of art may be divided into four classes:

1. The fine arts, properly so called, intended solely for ornamental purposes, and including paintings in oil and water, upon canvas, plaster, or other material, and original statuary of marble, stone, or bronze. These are subject to a duty of 15 per cent.

2. Minor objects of art, intended also for ornamental purposes, such as statuettes, vases, plaques, drawings, etchings, and the thousand and one articles which pass under the general name of bric-a-brac, and are susceptible of an indefinite reproduction of the original.

3. Objects of art, which serve primari'y an ornamental, and incidentally a useful purpose, such as painted or stained glass windows, tapestry, paper hangings, &c.

4. Objects primarily designed for a useful purpose, but made ornamental to please the eye and gratify the taste, such as ornamented clocks, the higher grade of carpets, curtains, gas-fixtures, and household and table furniture.

Since the rendition of that opinion, this court has been called upon on numerous occasions, to construe similar provisions of succeeding tariff acts. In none of these cases have any of these statutory provisions ever been extended to cover anything further than such works of the free fine arts as are specifically named in the same, such as paintings and sculpture, or, latterly, etchings or drawings. While we have held that the word ‘'including” used in these provisions in connection with and following the words “works of art”, is a term of specification rather than of limitation, Petry Co. v. United States, 11 Ct. Cust. Appls. 525, T.D. 39666, no case can be found where they have been extended to include merely the decorative arts.

It may be said that vases have been found to be classifiable as such works of the fine arts. An example of such a holding is United States v. Baumgarten & Co., 2 Ct. Cust. Appls. 321, T.D. 32052. The vase in that case, however, was of marble, with representations of human figures in relief thereon, executed by an artist, and was held by us to be a work of the free fine arts because it was a sculpture.

There can, however, be no such holding here, because the articles before us in no respect respond to the definitions which we have repeatedly given to the term “sculptures.”

If they are not sculptures, then in what respect do these objects constitute works of art? Certainly not because they were made by an artist, because an artist may make things which are not works of art. Certainly not in their coloring or air bubbles, for these will not give them the character of works of art. United States v. Perry, supra. Certainly not in their decorative effect, for in that respect they cannot be distinguished from the decorative effects of the carved marble column in United States v. Olivotti, supra, of which it was said, “The surface of the long, tapering column is ornamented by carvings suggestive of leaves.”

On the record before us, the best that can be said of these imported objects is that Navarre and some of his coworkers have discovered a novel method of fabricating glass vessels. Because of their method of manufacturing and unique appearance, they appeal to the taste of some. However, the art which produces them is decorative, and not such as has always been held to be the practice of the free fine arts.

The judgment of the United States Customs Court is reversed insofar as it sustains the protests against the collector’s classification of “the merchandise in controversy which is represented by samples introduced as Exhibits 1, 2, and 3.” In other respects, the judgment is affirmed.

Garrett, Judge, dissents.