*139DISSENTING OPINION
Smith, Judge:Much to my regret I find myself unable to concur in the prevailing opinion.
The goods imported are mosaics made of bits of colored glass, the product of the glassmaker. The mosaics and the form and color given to them are admittedly the conception and the work of an artist of high order. When completed the mosaics make their appeal to the emotions only and apparently have no utilitarian purpose whatever. They are not the concept or the work of an artisan, but are the offspring of the imagination of the artist and are designed and made up under the exclusive supervision and control of the artist. The glassmaker made and colored the glass. The artisan shaped the pieces of glass and put them in place. The coloring, shaping, and placing of the pieces was, however, controlled, supervised, and wholly determined by the artist and not by the glassmaker or artisan.
The testimony is positive and uncontradicted that the mosaics in issue are the productions or reproductions of a fine art painter and that the process of making them is identically the same as putting specks of color on a piece of canvas with a brush. Indeed, the mosaics are so much the production of the artist painter that they are known and called mosaic paintings.
The importations are works of the free fine arts of which painting in oils, water colors, or pastel, is typical and, as I see it, are works of art as that designation has been repeatedly defined by this court. See United States v. Baumgarten & Co., 2 Ct. Cust. Appls. 321, 322, 323, 324; Stern v. United States, 3 Ct. Cust. Appls. 124, 125, 127, 128; United States v. Godwin’s Sons, 3 Ct. Cust. Appls. 226, 228; Warren & Wetmore v. United States, 3 Ct. Cust. Appls. 461, 462, 463; Downing & Co. v. United States, 3 Ct. Cust. Appls. 473; United States v. Olivotti & Co., 7 Ct. Cust. Appls. 46, 48, 49; Reardon v. United States, 11 Ct. Cust. Appls. 233, 236, 237. To be a work of art a thing must be conceived, designed, produced, or reproduced by an artist or under his immediate supervision and control. See Merritt v. Tiffany, 132 U. S. 167, 170, 171.
The decisions of this court as to what constitutes a work of the fine arts are clearly supported by the article on the fine arts written by Sidney Colvin, LL. D., for the Encyclopaedia Britannica. ' See Fine arts, Encyclopaedia Britannica, Yol. X, p. 365. Doctor Col-vin unmistakably declares that the painter’s craft is not confined to the making of pictures in fresco, oil, distemper, or water color on an opaque surface, but includes the fitting together of a multitude of solid cubes or cylinders so that their united surf ace forms a picture to the eye, as in a mosaic. He defines the art of painting as a shaping or space art, the business of which is to express and arouse emotion by the *140imitation of all kinds of natural objects, reproducing on a plane surface the relations of their boundary lines, lights and shadows, or colors, or all three of these appearances together. (Encyclopaedia Britannica, Yol. X, p. 365.
In Petry Co. v. United States, 11 Ct. Cust. Appls. 525, there was no evidence that the mosaic pictures there involved were produced by a painter or artist or that they were anything more than the work of an artisan. I think, therefore, that that case can not be regarded as any authority whatever for the conclusion that mosiacs produced or reproduced by a painter and conceived, designed, colored, and formed by him are not works of the fine arts. Indeed, Judge Martin carefully limited his decision to mosia'c articles like those submitted to him and expressly stated that the conclusions reached by him did not necessarily apply to every possible picture into which stone may enter as a component material.
I am of the opinion that the judgment of the United States Customs Court should be reversed. .
BlaNd, Judge, concurs in this dissent.