The "professional productions of a statuary or of a sculptor
only," as that phrase is used in the tariff act, § 2504 Rev.Stat.
2d ed. p. 478, embraces such works of art as are the result of the
artist's own creation,
Page 132 U. S. 168
or are copies of them, made under his direction and supervision,
or copies of works of other artists, made under the like direction
and supervision, as distinguished from the productions of the
manufacturer or mechanic.
This was an action to recover duties alleged to have been
illegally exacted. Verdict for the plaintiff and judgment on the
verdict. Defendant sued out this writ of error. The case is stated
in the opinion.
MR. JUSTICE FIELD delivered the opinion of the Court.
In 1880 and 1881, the plaintiff below, Charles L. Tiffany,
imported from France and England various bronze statues and
statuettes which he claimed a right to enter as statuary on paying
a duty of ten percent
ad valorem, but on which the
collector charged a duty of forty-five percent as nonenumerated
manufactures of copper. He was accordingly compelled, in order to
obtain his goods, to pay $420.25 in excess of the ten percent,
which payment he made under protest, and appealed to the Secretary
of the Treasury, who affirmed the decision of the collector. He
then brought this action in the supreme court of New York, from
which it was removed on certiorari to the Circuit Court of the
United States for the Southern District of New York.
The plaintiff relied for recovery on the paragraph in "Schedule
M, Sundries," contained in Title thirty-three of the Revised
Statutes, "Duties upon Imports." That paragraph reads as
follows:
"Paintings and statuary, not otherwise provided for, ten
percentum
ad valorem. But the term 'statuary,' as used in
the laws now in force imposing duties on foreign importations,
shall be understood to include professional productions of a
statuary or of a sculptor only."
Rev.Stat. 2d ed. 478, 479.
The collector claimed that the goods were subject to the
Page 132 U. S. 169
duty charged under the paragraph in "Schedule E. Metals,"
contained in the same title of the Revised Statutes. That paragraph
reads as follows:
"Copper in rolled plates, called 'braziers' copper,' sheets,
rods, pipes, and copper bottoms, and all manufactures of copper, or
of which copper shall be a component of chief value, not otherwise
provided for, forty-five percentum
ad valorem."
Rev.Stat. 2d ed. 467.
The articles imported were all made of copper, and fell under
the general designation of "manufactures of copper," or of
"manufactures of which copper is a component of chief value,"
subject to a duty of forty-five percent
ad valorem, as
charged by the collector, unless provision for a different duty on
articles of that character is made in some other clause of the
statute. There is no other clause applicable to them unless they
come under the head of "statuary," as defined by Congress. That
definition, as seen above, includes the "professional productions
of a statuary or of a sculptor only." What productions are to be
deemed professional productions of a statuary or a sculptor it is
difficult to state in general terms so as to embrace every article
of the kind. It is sufficiently accurate, however, for this case to
say that the definition embraces such works of art as are the
result of the artist's own creation, or are copies of them, made
under his direction and supervision, or copies of works of other
artists, made under the like direction and supervision, as
distinguished from the productions of the manufacturer or mechanic.
The definition does not limit the professional productions to those
of the sculptor's creation. As said in
Tutton v. Viti,
108 U. S. 312,
108 U. S. 313:
"An artist's copies of antique masterpieces are works of art of as
high a grade as those executed by the same hand from original
models of modern sculptors."
The articles in question in this present case were reproductions
of noted figures, and with the exception of the two Roman
gladiators by Guillemin, were all made by manufacturers or
mechanics. A model of a figure being prepared, any number of copies
can be cast from it without any aid of the sculptor. One of the
witnesses in the case testified that he had
Page 132 U. S. 170
been employed in New York city for eleven years in the
manufacture of bronze statuettes, and that the company with which
he was connected manufactured about forty thousand figures a year,
varying in size from ten inches to thirty-six and thirty-nine
inches, some similar to and some larger than the sample
produced.
Another witness, who stated that he had been familiar with the
process of manufacturing statues for twenty years, testified that
the men who do the work of casting are skilled mechanics; that a
model of a figure can be made so as to produce any number of
copies, and that the process is purely mechanical.
The testimony of Leon Barre, who purchased the articles for the
plaintiff, is instructive. He had been salesman and buyer for him
for sixteen years, and had purchased in Europe bronze statues for
him since 1880. He thus testified:
"The method of production of bronze statuary abroad is as
follows: the artist or statuary first conceives a design. He puts
it on paper. He studies his subject historically, and then makes a
clay model. From that clay model he makes a plaster one, which he
either sells to a founder or reproducer, who is technically called
an 'editor,' or else he edits it himself. . . . The editor must,
for the purpose of reproduction, either use the clay or plaster
model of the statuary. That was so here. I find next two Roman
gladiators on this invoice. The original model of that was made by
Guillemin, and edited by him, and manufactured under his immediate
personal supervision. He is a well known sculptor and statuary, and
these are his professional productions. I find next the statues of
Penelope, Madeline, and the Retour des Champs, and busts of Delilah
and Shakspeare. The busts are cast by Barbedienne. He is the most
noted founder of bronze statuary. The others are cast by David, who
is also a superior founder. I don't know what artist made the
original clay model in these cases. I find also on the invoice a
Venus de Milo, and Mercury, and David before the Combat, and a
Bernard Pallissy, all cast by Barbedienne. The original artist is
unknown to me. Barbedienne is a maker of statues. When a sculptor
has produced his clay model, unless he is himself an editor, he
expends no
Page 132 U. S. 171
further work on the subject, but all subsequent processes of
founding, chasing, and finishing are done by the editor. This is
artistic work. There is another way of making bronze statuary, but
the statues in this suit were made as I have stated. . . . In all
cases of editing, it is absolutely necessary for the editor to have
and use the model of a sculptor."
Upon cross-examination, this witness gave further evidence
tending to show that, with the exception of Guillemin, referred to,
the only other sculptor is Basset. All the others are editors. The
witness states:
"I know Basset to be a sculptor; I have seen his models. He did
not make the models for the Love and Flora. Any number of
reproductions in bronze can be made from the artist's model without
any further work of the sculptor"
The evidence thus given by different witnesses was sufficient to
justify the defendant in asking the court to instruct the jury
that
"if they find from the evidence that the imported articles were
made, not by professional sculptors or statuaries, or by their
assistants, under their direction, but were made by skilled workmen
or mechanics in the employ of the manufacturer, then their verdict
should be for the defendant."
This instruction the court refused, to which refusal counsel
excepted. In its ruling in this respect we think, the court erred.
Under the instruction, the jury might possibly have found that some
of the articles, like the Roman gladiators, were the productions of
a statuary or a sculptor within the meaning of the statute, while
excluding others.
The judgment must therefore be reversed, and the cause
remanded for a new trial, and it is so ordered.