delivered the opinion of the court:
This appeal involves the construction and application of two paragraphs of the Tariff Act of 1922, relating to works of art, which follow:
Par. 1449. Works of art, including paintings in oil or water colors, * * * and copies, replicas, or reproductions of any of the same; *"* * all the foregoing, not specially provided for, 20 per centum ad valorem.
*327Par. 1704. Original paintings in oil, mineral, water, or other colors, * * * and the words “painting” and “sculpture” and “statuary” as used in this paragraph shall not be understood to include any articles of utility, * * *.
The importation involved consisted of eight so-called original paintings in oil which were painted by an American artist abroad and were designed, painted, and imported for the express and only purpose of being reproduced by photographic or lithographic process and then used to illustrate parts of magazine stories in “Hearst’s International Combined with Cosmopolitan.”
It is conceded that the artist in painting them made use of no mechanical means such as stenciling, etc. They'were painted with a brush and in oil colors, and they are not copies, replicas or reproductions and no painted copies were made from them.
The testimony is to the effect that the two stories which were to be illustrated were read by the art editor of the magazine company, in the United States, and instructions were prepared for the artist, which instructions called attention to certain parts of the story for which illustrations were desired. One of the exhibits is before us and shows a man standing and a woman seated in a room, and evidently engaged in conversation. The testimony shows that the artist was instructed that there were certain places in the story where certain characteristics of the individuals were mentioned, and that these places were marked so that after the artist read the story his painted characters would conform to the text; that he conceived without model the characters he produced and was guided only by his own conception and such meager instructions as the art editor had afforded him. The testimony also shows that the pictures were designed, intended and provided for the sole and only purpose of being reproduced in the form of plates to be used in illustrations in the magazine; that the pictures after importation were sent to the photographic engraving company, plate makers, who were furnished the dimensions desired; that the plates were later sent away and electrotyped and the ones used were then sent to the printers. Four of the paintings involved were not used for .the reason that the story was not published. The testimony shows that they had no use for these four and that they were a “dead loss” and that they were in the magazine company’s storerooms.
The Government, in the court below, tried the case apparently upon the theory that since the paintings were made pursuant to certain instructions, they were not original conceptions of the artist and were, therefore, not original paintings within the meaning of paragraph 1704. The Government also took the position that they, were articles of utility and, therefore, expressly denied classification under said paragraph. The collector classified the merchandise under paragaph 1449 and levied duty at 20 per centum ad valorem *328provided for thereunder. Appellants protested and claimed them classifiable under paragraph 1704.
The court below held the articles to be original paintings in oil, but followed its decision in Abstract 42491 and held that the importation consisted of articles of utility and denied it classification under paragraph 1704. In the opinion the court below, after stating the Government's position that the paintings were not original, aptly said:
A portrait is no less original because the artist has the subject before him and is guided by it. Nor is a landscape lacking in originality because painted from nature. That the artist is obliged to follow the author’s general description of a character does not prevent the painting from being the original conception of the artist of a character with those general characteristics. It has been said and is generally accepted, we think, that no two people see the same thing in exactly the same way. Certainly, then, a fictitious person or persons would not appear to two people in exactly the same way. We think upon the record that the plaintiffs have proved the originality of the paintings.
We think the foregoing is a correct statement of the law. See Baldwin Shipping Co. v. United States, 12 Ct. Cust. Appls. 128, T. D. 40051.
Upon the question of whether the paintings here involved are articles of utility, the lower court said:
As stated above, paragraph 1704, under which the plaintiffs claim free entry, expressly excludes paintings which are “articles of utility.” In Abstract 42491 this court, then the Board of General Appraisers, in passing upon this same question under the Tariff Act of 1913, paragraph 652 of which was reenacted, practically without change, as paragraph 1704, supra, said:
The paintings were introduced in evidence. It appears from the testimony that they were imported for the express purpose of being used as illustrations in a serial story which appeared in one of the popular magazines.
* * * # * * *
Paragraph 652, under which the importers claim,’ provides, among other things, that the word “painting” as used in the paragraph “shall not be understood to include any articles of utility.” The question, then, to decide is whether these may be considered articles of utility. We must bear in mind that they are ordered for a certain purpose, to wit, the illustration of a serial story which assists in making up a magazine, a commercial commodity. Anything which adds to the interest of the story adds to the mercantile value of the magazine. The importers, in contracting for these, had in mind, of course, the purpose (and from our inspection of the goods we should say the single purpose) which would make the pictures desirable or valuable, to wit, an instrumentality in enhancing the marketable value of the magazine. We can not escape the thought that this is such a utilitarian purpose as would exclude them from classification under paragraph 652. * * *
We find nothing in the record in the instant case to cause us to depart from the reasoning and conclusions above quoted.
We think that the phrase “articles of utility” should be given a very liberal construction, because we believe that Congress had in mind, in providing for free entry of original paintings but excluding articles of utility, only such paintings as were designed in their creation to be used solely in such a way as to appeal to the esthetic sense in the observer of the same, and that a painting conceived and *329created solely for a utilitarian purpose, and which is not designed as a means in itself of exciting the emotions of the observer, does not come within the provision of paragraph 1704, but is excluded therefrom by the phrase “articles of utility.” In the case at bar it is affirmatively shown that the artist definitely understood, when engaged to paint the importations in question, that his productions would not be enjoyed except when reproduced into something else by mechanical means. As we view it, these paintings were created as one of the steps in the production of a magazine, which is a commercial commodity. The purpose was to add to the mercantile value of the magazine, < and their creation had no other purpose. These facts, we think, make the paintings in question “articles of utility’’within the meaning of paragraph 1704.
There is a clear distinction between the case a bar and that of Progressive Fine Arts Co. v. United States, 18 C. C. P. A. (Customs) 306, T. D. 44506. The latter case involved the importation of original paintings from which plates were made for reproductions of the same, after which the paintings were returned to the country of exportation. There was no evidence that the paintings there in question were conceived or created for any utilitarian purpose, and we there held that the classification of the paintings must be determined by what they actually were at the time of importation and not by the use the importer made of them. In other words, original paintings do not become articles of utility by reason of the fact that, after importation, they are used for a utilitarian purpose; but, if they are created solely for a utilitarian purpose, upon the order of and in accordance with the instructions of the importer, they are articles of utility.
Naturally, the most frequent application of the phrase “articles of utility” in paragraph 1704 relates to articles composed in part of paintings, such articles having in themselves, however, utilitarian uses irrespective of the paintings. While the paintings in question do not, in fact, come strictly -within this class, nevertheless they are clearly within the spirit of it; and we think that the particular kind of utility attaching to the importations here involved is as much a bar to their free entry as is the utility of that class of articles first referred to in this paragraph.
We hold that the articles in question are articles of utility, and therefore the judgment of the United-States Customs Court is affirmed.