The opinion
Smith, Judge,
specially concurring.
In my opinion there are mosaics which are not utilitarian in character, which make the same appeal to the emotions as do paint *529 ings and which, are the conception of artists whose eye for color, form, lights, and shades is that of the painter. Such mosaics, if my memory serves me well, are sometimes known as “mosaic paintings” and if the article involved in this appeal were proven to be of that kind, I should hesitate to regard it as a manufacture of marble or stone instead of a work of the fine arts.
The mosaics under consideration were returned by the collector as pictures made of pieces of marble and not sculptures or paintings. No evidence was introduced by the importer other than a photograph of the article and testimony to the effect that the importation “had some artistic merit.” Whether the mosaic was the production of an artist or of an artisan does not appear from the record and the claim that it is a work of the fine arts is sustained by no evidence other than the photograph and the statement of the examiner that it had “some artistic merit.” That a thing has artistic merit does not necessarily make it a work of the fine arts.- The creations of the architect, the lace worker, the- potter, and the mosaic artisan are not infrequently artistic, but they can not be classed with paintings, sculptures, etchings, or engravings which are the productions of the artist. The evidence does not warrant a finding that the importation is a work of the fine arts and I therefore concur in the conclusion reached.
Bland, Judge, concurs herein.