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 near the coast, which very frequently happens during the winter months, several boats put off in pursuit armed with nets, and rough iron spikes stuck in the end of long bamboos. As nets are rather curious implements to capture these great monsters with, a description of those which are employed is necessary.

The mesh is about a yard square; size of rope about three inches. It is made up in large squares, each side being 30 or 40 feet deep. These squares are attached to each other lightly, at the corners, and middle. The length of the whole net is about 200 feet, which is carried in two boats, and on getting within distance of the whale, the boats separate, dropping the net as they go, and again meeting on the other side, enclose the whale. If this is successfully done, and the great brute disturbed, he almost invariably strikes the net, as he dashes off. Whichever square of net he strikes breaks away from the rest, and now the faster he goes the more it clings to him. He dives, plunges and kicks to no purpose, and soon becoming confused and worried, returns to the surface, when the same process of surrounding him with another net is gone through. Again he dashes off only to become more confused and frightened, when coming to the surface once more, tired and worried, he is pierced with the primitive harpoons mentioned, until killed. He is then towed on shore, cut up, and sold for food—and very repulsive food it looks.

Owasi Bay, one of the numerous indentations I have mentioned as occurring along the coast, is situated about half way between Oosima and Toba. It affords excellent anchorage for vessels of any size, particularly in one of its long narrow arms, where the most complete shelter, easy of access in all weathers, is found. It was from here I had to go inland, to reach the summit of the highest range of a multitude of ranges of mountains, of which the Yamato province consists. Grand and beautiful mountains they are. The peak of Odai Yama is seen from seaward, when clear, for a great distance, the mountains north and south of it gradually rising and

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 meeting in its flattish double-looking top. On enquiry I ascertained that it was possible to get there, but the inhabitants at Owasi knew little or nothing about it, beyond fabulous stories of wild beasts, and the wonderful distance to be seen from its summit.

Having made arrangements for a ten days’ trip, I started to make the ascent on the 15th October 1874. The first five miles led up the course of a beautiful clear stream, which winds down between steep abrupt mountains, 2000 feet high, and falls into one part of Owasi Bay.

We soon left the level,—for in this five miles we had not ascended 50 feet—and for 5$1⁄2$ miles toiled up a single mass of mountain, to a height of 3113 feet. Of course the path zig-zagged, turned boulders, crossed streams, sometimes found a flattish spot, then wound round spurs, and, lastly, emerging on the Peak, opened on a magnificent view. What surprised me regarding these mountains was the mass of rock, the huge stones and little soil of which they are composed, and at the same time the wonderful exuberance of the flora.

Lowest down and particularly in sheltered valleys or dips, the sugi trees flourish, growing so thick and close together that it is all but perpetual night underneath their yellowish green tops. The sugi vies with the wo matsu (Pinus massoniana), which is the commonest and most utilized tree in Japan. The hinoki appreciates the same sheltered situations, but is never grown so thickly together. It also flourishes at the very summit of the hills and mountains, as high at last as 5000 feet. But these trees are self-sown, and always isolated, growing straight and strongly, having evidently outrun or beaten their immediate neighbours, which appear stunted and twisted. Next to these,—I am speaking of the coniferæ—comes that lovely tree Picea Firma, the native momi. It is a true cedar in every way, and in appearance resembles that of Lebanon. Only one more beautiful species do I know out here, that is the Abies Iezoniensis. This magnificent tree I found flourishing in the far East of Yeso, and on the S. W. end of Kunishir Island. Adies microsperma, a

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All you need say of Fontainbleau (in case you are ask'd) is, that it stands about forty miles (south something) from Paris, in the middle of a large forestThat there is something great in itThat the king goes there once, every two or three years, with his whole court, for the pleasure of the chase—and that during that carnival of sporting, any English gentleman of fashion (you need not forget yourself) may be accommodated with a nag or two, to partake of the sport, taking care only not to out-gallop the king

Though there are two reasons why you need not talk loud of this to every one.


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 though much smaller tree (none that I have seen being over 40 or 50 feet in height) grows on the higher ranges, particularly on the summit of Odai Yamuna. There also I found Abies Veitchii, a beautiful species of silver fir. The cone of this species is very small, dark purple, tinged with brown, growing erect near the axillæ of the branchlets. The scales are very horizontal, and the cone usually splotched over with resin. Pinus Silvestris (Scotch fir) is not plentiful, though found on these mountains.

I have now named most of the coniferæ growing in this locality. There are a few other species, less common and only found in a few places, and then generally as single plants. But those I have mentioned constitute the cone forests, and of all these none grow to the height and large dimensions of the Pinus Firma. Many a magnificent old patriarch I came across, frequently a dozen or more, in the space of an acre or so, all colossal trees, and in rare perfection as timber; but as to their being made timber of, they are perfectly safe, as it would be impossible to transport them as such to the habitation of man. I am only 3100 feet up and have but named the Pines. To enumerate the deciduous shrubs which I have passed through would be an endless task. I observed great numbers of myrtles, camellias, the wild paper mulberry and innumerable other species.

From the summit of the first range, where we now were, and looking back, the whole sea-coast lay at our feet, the indentations and harbours, looking like threads of silver, running and twisting amongst the hills and valleys. The path now led away along the ridge of a range at right angles to the one we had ascended, and for 3$1⁄2$ miles we went very evenly, then dipped down 1,000 feet, crossing a mountain torrent, and immediately ascended to 4000 feet. Here was a great change in the Flora, nothing but oak, beech, chestnut and maple, no pines, the under cover bamboo grass, identical, I believe, with that in Yeso. Along this 4,000 feet ridge, we went for several miles, when suddenly the path

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 First, Because 'twill make the said nags the harder to be got; and

Secondly, 'Tis not a word of it true.Allons!

As for you may dispatch it in a wordTis an archiepiscopal see."

—For —the less, I think, one says of it, the better.

But for —I could go on for ever: for in my grand tour through Europe, in which, after all, my father (not caring to trust me with any one) attended me himself, with my uncle Toby, and Trim, and Obadiah, and indeed most of the family, except my mother, who being


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 taken up with a project of knitting my father a pair of large worsted breeches—(the thing is common sense)—and she not caring to be put out of her way, she staid at home at, to keep things right during the expedition; in which, I say, my father stopping us two days at Auxerre, and his researches being ever of such a nature, that they would have found fruit even in a desert—he has left me enough to say upon : in short, wherever my father went—but 'twas more remarkably so, in this journey through France and Italy, than in any other stages of his life—his road seemed to lie so much on one side of that, wherein all other travellers had gone before him—he saw kings and courts and silks of all colours,


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 the crest, and then descended with terrible steepness, along only one shoulder of the mountain, to 1,500 feet. What a wonderful spot we here reached! A few very poor inhabitants had clustered together forming a village of about ten houses, called King umi, situated on the steep slope of the hill side, in an almost perfect crater, so steep and straight did the mountains rise all round.

There was but one opening where a clear stream of water rushed over great boulders, joining a large river close by, which flowed away to the southward for 70 miles, before reaching Singo. The small patches of potatoes and other vegetables round the cottages, were all barricaded in with stout wood, (quarter trees) to keep the deer and wild boar out. I was charmed to find here a domesticated bee, even then busily working, notwithstanding the lateness of the day and season. One cottage had six hives, rough square boxes, sheltered with some bark from the rain. The bee is similar to our own, but rather smaller, and as for the honey, it is excellent. I must just add before closing the first day that we had again left the oak and chestnut and returned to the region of the henoki and sugi. From here and along the course of the river these two cedars are grown, and when cut, floated to Singo.

Here I must remark that immediately after topping the first range of mountains from the sea, all the streams and rivers took a southerly direction, and though close to the sea coast—about six miles as the crow flies—none found their way there.

Occasionally during the day I came upon men and women carrying immense loads of staves for tubs, all ready cut, and soon found that they went many, many miles into these wild forests, until finding a suitable tree they felled it, and there and then cut it up into tub staves; to do this they had to return to and fro frequently, atire; some and laborious task. We had come from first starting at Owari Bay not less than 18 miles, all the way, except the first 5 miles, up and down mountains, the highest being 4,000 feet. At Kingumi we put up for the night.

Next morning we started at eight, getting almost

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 into the river’s bed, and for 3$1⁄2$ miles followed its stony rocky, upward course, crossing it in that distance than twenty times. Frequently the cliffs obliged us to crawl round them through the thick tangled cover, again taking to the slippery stony bed of the river, to leave it shortly for another scramble. Fortunately it was all rather up hill, which lessened the chance of falling. I know nothing more trying and disagreeable to walk over than smooth water-worn slabs of rock, and big boulders. It would be impossible to give an idea of the extraordinary steepness of the mountain sides as they rose from the river course, many of them crowned by magnificent castellated rocks, 2,000 feet above us. Marvellously grand they looked, covered with the lovely autumn tints of the oak, maple, &c. After three and a-half miles along the river, we breasted the hill, and after a continuous climb of more than three hours, reached the crest. Striking off along an irregular plateau, we arrived at our destination at half-past three, being still four miles from the summit of Odai Yama.

The mass of mountains we had now reached, 4200 feet above the level, spread out for a great distance, in an irregular plateau, here and there varied by rises 500 or 600 feet high, and traversed everywhere by numerous streams.

The highest peak on this singular table land was the spot I wished to reach, and is called Odai Yama.

The whole of this immense extent of mountain is covered with primeval forest; generally there is no underwood, but a soft carpet of the greenest moss covers the ground. The trees are likewise coated with moss and lichen. As I gazed upon the great stems of these self-planted and never disturbed trees, all I may say of good size, and most of them of grand proportions, I could not help internally ejaculating, “What a waste of Timber!”

Five years since, the Japanese Government decided to form a settlement on this space of table-land, although there exists no way or means of getting there except by climbing the steepest and most precipitous mountains imaginable. They cleared away—or rather merely cut

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 down—about 12 acres of wood, on a spot or glade through which there streams traverse, meet, and flow away in one. Here they built a house for an official to superintend the settlement, &c., set up a water-mill,—what for, I could not make out,—dug up a few square yards, certainly not more than twenty, and planted potatoes. Then, as might have been foreseen, they pronounced the enterprise impracticable, shut up the house, and left. The house, though partially in ruins, afforded us good shelter. It was built on the bank of one of the streams, which happened to be full of excellent trout. Here in half an hour, and with an impromptu wooden spear, we caught daily as many as we pleased.

The magnificent great oak trees which had been cut down, were lying about just as they had been left, many of them three feet in diameter, and fifty feet of clean stem. It appears unfortunate that none of the good timber, abounding on these mountains, is ever likely to be turned to use. I see no means of getting it down from these heights. It is an undertaking of very considerable labour for a man to get up or down when unencumbered, and the transport of large logs of timber to the river would be, I consider, impossible. The beech which flourishes on the nearer ranges, and which is of large growth, might possibly be utilized. There are no people more persevering than the Japanese in the way they farm the hill sides with timber. None appear too steep or rough, and wherever the sugi and henoki will grow, there it is sure to be found cultivated. This, of course, is on the mountains nearer to the sen, and close to the villages.

Having reached towards evening the dilapidated house I have mentioned, and caught enough trout for supper, I was not sorry to turn in and rest. Next morning, very soon after daylight, I started with only the guide, for the top, in hopes by going quietly to come across a bear, wolf, or nigoo. Crossing a stream, we came upon the fresh track of a bear, whose wet foot-marks were still on the stones, where he had left the water. But he was not to be found, though I followed him some distance. In two

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 hours the summit was reached, rather more than 1000 feet above the rest-house, the total height being 5400 feet. Here on climbing to the top of a tree, which most conveniently had its top twisted off, I found the Japanese had not exaggerated the view to be obtained. Although I shall never forget it, I feel it is useless to attempt to describe it. Suffice it to say, all the coast, and the interior as far as the eye could reach, lay before me. No higher range sprang up to intercept the view. Far away in the distance Fusi yama rose out of a curtain of mist, and another great mountain further to the North and West, the name of which I do not know, was also to be seen. The former was 150 miles distant; the latter not so far. it is surprizing how great an extent of country Odai-yama, notwithstanding its moderate height, commands. I had only half succeeded with the theodolite, when down came a shower of rain, from the N.W., which quickly settled into a wet afternoon. The next day was spent mostly in the clouds: it cleared away towards the afternoon, but not in time to reach the top and return before dark. The day after this I was again at the summit soon after daylight, but it thickened over before I finished, so I spent an hour or two roaming through the beautiful primeval forest. The perfect silence that reigned was only disturbed by the big black and white woodpecker, as he tapped the trees with his hard sharp bill in quest of insects. The wolves were not howling as they did when I first reached the tops two days before.

Next day it blew a good gale—and what a grand sight it was! These glorious forests, which yesterday were so still and silent, now roared and howled, as the gusts of wind rushed through them; branches were broken off and hurled away, trees felled, and cracked off like twigs, and the air was thick with flying leaves. It was a wild and grand sight, the streams soon became good-sized rivers, for it rained in torrents the whole time.

The storm lasted throughout the following day, but towards evening the wind hauled to the north, and I felt sure fine weather would follow.

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342 to have commenced. At school he is taught the alphabet, as with ourselves, by the eye and ear, the forms of the letters being presented to him in writing, and their names pronounced in his hearing, which he is required to repeat until he is able to connect the names and the forms with each other in his mind. The scholar is afterwards made to read the thirtieth section of the Koran, the chapters of which are short, and are generally used at the times of prayer, and in the burial service. The words are marked with the diacritical points, in order that the knowledge of letters, their junction and correct orthography, and their pronunciation from the appropriate organs, may be thoroughly acquired, but the sense is entirely unknown. The next book put into his hands is the Pandnameh of, a collection of moral sayings, many of which are above his comprehension, but he is not taught or required to understand any of them. The work is solely used for the purpose of instructing him in the art of reading, and of forming a correct pronunciation, without any regard to the sense of the words pronounced.

“It is generally after this that the scholar is taught to write the letters, to join vowels and consonants, and to form syllables. The next book is the Amadnameh, exhibiting the forms of conjugating the Persian verbs which are read to the master and by frequent repetition committed to memory. The first book which is read for the purpose of being understood is the of Sadi, containing lessons on life and manners, and this is followed or accompanied by the  of the same author. Two or three sections of each are read; and simultaneously short Persian sentences, relating to going and coming, sitting and standing, and the common affairs of life, are read and explained. The pupil is afterwards made to write Persian names, then Arabic names, and next Hindu names, especially such as contain letters, to the writing or pronunciation of which difficulty is supposed to attach. Elegant penmanship is considered a great accomplishment, and those who devote themselves to this art, employ from three to six hours every day in the exercise of it, writing first single letters, then double or treble, then couplets, quatrains, &c. They first write upon a board with a thick pen, then with a finer pen on pieces of paper pasted together, and last of all, when they have acquired considerable command of the pen, they begin to write upon paper in single fold. This is accompanied or followed by the perusal of some of the most popular poetical productions, such as Joseph and Zubikha, founded on a well-known incident in Hebrew history; the loves of Leila and Majnun, the Secander Nameh, an account of the exploits of Alexander the Great, &c. &c. The mode of computing by the Abjad, or letters of the alphabet, is also taught, and is of two sorts; in the first, the letters of the alphabet in the order of the Abjad being taken to denote units, tens, and hundreds, to a thousand; and in the second, the letters composing the names of the letters of the alphabet being employed for the same purpose. Arithmetic, by means of the Arabic numerals, and instruction of great length in different styles of address, and in the forms of correspondence, petitions, &c. &c. complete a course of Persian instruction. But in many schools the course is very superficially taught, and some of the teachers do not even profess to carry their pupils beyond the Gulistan and Bostan,”

After showing that the average age of entering school, for all the districts, is about 8½ years, of leaving school 22, and the average period of the duration of study about 12, Mr. Adam thus sums up his impression of the results of the protracted term of scholastic apprenticeship:—

“Upon the whole, the course of Persian instruction, even in its less perfect


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 The next morning the sun was scarcely up, when I started for the summit. Bitterly cold it was, the ground was frozen and crisp and the frost still silvered the trees and grass. The soft curtains of mist which were floating lazily about the dips and sides of the rising grounds soon dispersed as the sun rose higher in the heavens, and an hour spent on the summit finished my work. I saw a nigoo when going up, but though I got a snap shot, he went away untouched.

Before quitting this elevated spot, on my downward journey, I must add a few lines relative to the different natural objects which I found there. To begin with the largest animal, bears; they are certainly numerous, almost every oak tree appeared to be scratched and clawed by these animals. The moss covering their rough bark was torn off and hung down in strips. They evidently climb these trees to feed on the acorns. It is a small black species of bear, not half the size of that inhabiting Yeso. Wolves are abundant; they howled even during the day time close to us. The nigoo is a true species of chamois, and a handsome animal. I saw one of them: as I have said; they are numerous and afford food for the wolves. Deer are scarce; they prefer the lower ranges. Wild boar abounds and hares likewise.

All the streams at the top besides those lower down literally swarmed with trout, which were busily engaged spawning, while that little robber the water-ouzel, was as busily employed destroying the spawn, singing and diving and thoroughly enjoying the good food before him. This bird I may remark is identical with our own species, with the peculiar and interesting difference of not having the white horse-shoe patch on the breast, which the British species has. A single snipe of that large species Gallinago Australis, remained several days about the water near the house, and then disappeared. The common wren, often in its funny, inquisitive manner, would appear from some thick bush, utter its very long gong, and after watching me for a few moments, bob itself out of sight. I saw also a large spotted wood-pecker, a bird I have only

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 found in the extreme North of Nipon, the common jay, copper pheasants, an the robin red-breast. I was very pleased to find this latter bird, and to notice how exactly he resembled our own species in their bold impudent nature, as well as plumage; they appear only to differ in not having quite so much red on the breast, as those at home. I may also mention the bullfinch, whose note and habit are exactly similar to the English birds.

What delighted me greatly was the beautiful open woodland clear of brush wood and undercover, the soft green carpet of moss under foot and the perfect stillness and quiet. Oak, maple, beech, and chestnut, constituted the principal deciduous trees. Of these the oak, and beech, were invariably fine timber; the chestnut frequently, if not generally, sprang from the ground in two or three stems. The pines I have already mentioned, with the exception of a species of spruce, which I do not know, but which flourishes on the higher slopes. Yew of fair dimensions grew on the summit; henoki only moderately. I do not think the Japanese care much for the momi pine; at any rate I have never seen it cultivated. That wonderfully hard close-grained wood of a yellowish tint, much resembling box, and from which combs are manufactured, is found on Odai Yama; its native name is Tsagi. Another very peculiar deciduous tree, I saw, but only here and there, called sarta; it has a red skin-like bark, and is very hard and close grained. I might go on almost endlessly in speaking of the numerous species of deciduous trees, which here, unmolested by man, spring up, flourish and die, but I fear I have already dwelt too long on a single subject. Once more I may add I see no means by which these great forests of excellent timber can be got from their high and difficult situations, to the habitations of man.

The rocky courses cut through the mountains by the innumerable streams and rivers, shew generally limestone, and rough coarse granite, with a sprinkling of sand stone; higher up the rocks and stones are smaller, and granite predominates.

I started about noon for the downward journey, but

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 instead of returning the same way, struck away to the N. W. for four miles, along the ridge of a long spur of Odai Yoma; here we dipped down a few hundred feet, and fell upon the main road, or rather path, between Osaka and Singo. Turning to the S. E. for eight and a quarter miles along the path, we then suddenly descended from a height of 3,000 feet to 480, where in a village situated on a beautiful stream, swarming with trout, we found comfortable lodgings for the night. This afternoon we passed a cluster of huts on the hill, side some way to our right and far up a deep valley. The old guide when I enquired the name of the village, said there was a gold mine there, worked by one hundred people, under the superintendance of a Government official. Unfortunately it was not feasible to reach the place that day or I should certainly have visited it. It rejoiced in the name of Nishi no mura.

After resting for the night at Totchi moto, where there may have been about 50 houses, I started next morning at eight, mounted immediately to 2,700 feet and then descendod to a most rugged pass cut through the mountains, by a torrent of the clearest water, which after rushing down its headlong course over boulders and masses of limestone rock, joined one of the main rivers at a level of 400 feet above the sea, where five houses constituted the village of Nagouchi. We reached this place about noon, wet to the skin. It had rained in torrents since eight in the morning. From here we ascended again to a height of 3,000 feet. The coolies were nowhere, so I struck off along the sharp ridge, knowing by compass that the direction was right, but being enveloped in mist and rain. I was not sorry when in a couple of hours time I came across the same path I had passed along eight days before.

Being now certain as to my whereabouts, I made the best of my way to Owasi, reaching the ship at six, having since starting at eight, done bout twenty miles in distance, and ascended in the aggregate about 8,000 feet.

And here finished a cruise I shall always remember with pleasure and interest. I only wanted a little more

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 time for exploring, as my hands were tied by having to watch my opportunity for making the necessary observations at the summit. Before starting on the journey I had estimated the height of Odai Yama at 5,000 feet, to enable me to calculate the temperature, which proved however lower than I had anticipated. During the nights it was very cold, the lowest I registered the thermometer was 28°, and it froze pretty hard on two occasions.

I have only to add, that this wild region which stretches almost entirely across the peninsula, and far away to the north, is full of interest to the naturalist, while to the lover of scenery it presents views of the wildest and grandest description. The Japanese know very little about it; the charcoal burners are the only beings who penetrate far into the interior, and they never approach the inner masses of mountain, of which Odai Yama is but a single chain.

A General Meeting of the Society was held on Wednesday evening, 17th February, at the Grand Hotel, Dr. Hepburn in the chair.

The minutes of the last meeting were approved, and it was announced that Mr. Montague Kirkwood had been elected an ordinary member since last general meeting.

Sir Harry Parkes then read “A description of the coast between Oosima and Toba Harbours, and an account of an excursion among the forests and mountain ranges of the province of Yamato,” by Captain H. C. St. John, Commanding H. M. S. Sylvia.”

After the paper had been read a vote of thanks to Captain St. John for his interesting contribution was moved by the Rev. Mr. Syle, seconded by Mr. Drummond Hay, and carried unanimously.

Mr. Syle then remarked on the especially interesting and valuable character of the Paper just read; and questioned whether there might wot be constructed on the hill-sides of Yamato such timber-shoots or “slides” as were found in the forests of Germany and Oregon: also, it seemed very desirable, if indeed the true chamois is to he found in Yamato, that its skin should be utilized as leather, and its flesh for food.

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 Mr. Brunton said:—This country is no doubt, at present, badly off for timber, and it would be a great matter if the Government could do something towards utilizing the extensive forests described by Capt. St. John. The only really available hard wood at present in use is kiaki, and Capt. St. John mentions oak trees as existing in this district, of immense size. We know of oak being found in Yezo, but I have not heard before of its existence on the main island. If it is the true oak, this is an additional and a very powerful reason for some steps boing taken to bring these woods into use. So long as the way to the sea is down hill I hardly think there can be any insurmountable difficulty in getting the timber to the habitations of men.

Professor Ayrton said mention had been made in the paper of the evening of the charcoal burners penetrating far into the forests to obtain the wood. Possibly this would furnish an explanation of the comparative high price of charcoal, which could scarcely be found either in the coat of the burning or in the value of the wood, and therefore must be sought for in the difficulty of transport. In the case of the hard kinds of charcoal, which were much dearer than the soft charcoal, the cause might really be the great difference of value of the woods. Although all the Japanese burnt charcoal, the actual consumption really was not as large as it might at first sight appear to be, since, the hibachi being closed at the bottom, the absence of draught made the burning go on very slowly.

Mr. Brunton suggested that as Capt. St. John’s paper was confined to a description of the coast between Oosima and Owasi Bay, a request might be sent to him, along with the note of thanks already agreed to by the Meeting, to furnish another paper describing that part of the coast between Owasi and Soba. From his own knowledge he was aware that the harbour of Mura Goza und Matoya were among the most wonderful natural basins in this part of the world, and as Capt. St. John had most excellent facilities for acquiring information, he was in a position to supply papers of the greatest interest and value.

Six Harry Parkes undertook to convey the request to Captain St. John, and the meeting then terminated.

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 in such strange lights—and his remarks and reasonings upon the characters, the manners and customs of the countries we pass'd over, were so opposite to those of all other mortal men, particularly those of my uncle Toby and Trim—(to say nothing of myself)—and to crown all—the occurrences and scrapes which we were perpetually meeting and getting into, in consequence of his systems and opiniatry—they were of so odd, so mixed and tragicomical a contexture—That the whole put together, it appears of so different a shade and tint from any tour of Europe, which was ever executed—That I will venture to pronounce—the fault must be mine and mine only—if it be not read by all travellers and travel-readers, till travelling is no more,—or which comes to the same point—till the


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 world, finally, takes it into it's head to stand still.

But this rich bale is not to be open'd now; except a small thread or two of it, merely to unravel the mystery of my father's stay at.

As I have mentioned it—'tis too slight to be kept suspended; and when 'tis wove in, there's an end of it.

We'll go, brother Toby, said my father, whilst dinner is coddling—to the abby of Saint Germain, if it be only to see these bodies, of which monsieur Sequier has given such a recommendation.—I'll go see any body; quoth my uncle Toby; for he was all compliance thro' every step of the journeyDe-


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 the Due Process Clause). As these cases also make plain, however, “mere negligence” does not state a constitutional claim. Estelle v. Gamble, 429 U.S. at 107, 97 S.Ct. 285; Weyant v. Okst., [sic] 101 F.3d at 856. A prisoner must allege facts or omissions sufficient “to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. at 106, 97 S.Ct. 285.

The pleadings in this case do not evidence deliberate indifference by Dr. Avellini to Webb’s medical condition. To the contrary, Dr. Avellini plainly recognized that Webb’s prior surgery increased his risk of contracting testicular cancer. The doctor’s challenged actions were undertaken to ensure that no evidence of tumor growth was present. If, as Webb asserts, Dr. Avellini failed to conduct the examination with a reasonable degree of medical care and thereby caused him to sustain damages, plaintiff may well have a state action for malpractice, but “[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner.” Id.

The court hereby dismisses plaintiff’s § 1983 claim against Dr. Avellini.

For the reasons stated in this memorandum, the court hereby dismisses all of plaintiff’s federal claims against defendants Goldstein, Schwartz, Jans, Bruffee, Barall, Hynes, Johnson, Gibbs, Avellini, Mack, and McCartney. To the extent these claims implicate the validity of Webb’s prior conviction, the dismissal is without prejudice to refile if plaintiff should ever succeed in having his conviction reversed, vacated, or expunged. To the extent the claims challenge defendants’ request for or disclosure of Webb’s prison medical records, the claim is dismissed with prejudice.

The Clerk of the Court is directed to transfer the remaining claims as follows: (1) plaintiff’s federal and state claims against any members of the medical staff of the Sullivan Correctional Facility are hereby transferred to the Southern District of New York, where they are properly venued; (2) plaintiff’s state law claims against all other named defendants, as well as any unnamed assistant district attorneys., [sic] Correctioncorrection [sic] employees and parole officials, are to be transferred to the New York Supreme Court for Kings County. The Clerk is then to mark the full case closed.

SO ORDERED.

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Rh there is less ignorance: at least three in a thousand know that the stars are not the same as the planets, though two of the three are unable to say what is a planet and what is a star.

That immortal ass, "the average man," sees with nothing but his eyes. To him a planet or a star is only a point of light — a bright dot, a golden fly-speck on "the sky." He does not see it as a prodigious globe swimming through the unthinkable depths of space. With only the heavens for company the poor devil is bored. When out alone on a clear night he wants to get himself home to his female and young and — unfailing expedient of intellectual vacuity — go to bed. The glories and splendors of the firmament are no more to him than a primrose was to Peter Bell. Let us leave him snoring pigly in his blankets and turn to other themes, not forgetting that he is our lawful ruler, nor permitted to forget the insupportable effects of his ferocious rule.

1903.


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4 GALILEO. BACON. KEPLER. and singularly truthful im spirit, Kepler exemplified two things very distinet from each other, but both equally instructive, both alike suggestive of the link he represented in the ebain of progress. In the laws he discovered, he showed the harvest seldom withheld from the camest search for truth, whilst in the limit preseribed to his diseoveries, he exemplified the vast additional labour, and the eomparative short-coming of the greatest minds when pro- eeeding too muelt on hypothesis. Now it is interesting to remember that this was eoineident with the dawning of that glorious light, the Inductive philosophy of Bacon, and shortly sueeecded by the splendid generalization of Newton.

In like manner, if we think of the discoveries of Sir Humphrey Davy—their nature and rédations to physiology as well as ehemistry, we sec how mueh there might have been that was preparatory, and to a mind like Davy’s, Suggestive, in the investigations of preeeding and contemporancous philosophers. Priestley had discovered oxygen gas, Galyani and Volta had �


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 Todd Blecher, New York, NY, for Plaintiff.

Alfred R. Fabricant, Ostrolenk, Faber, Gerb & Soffen, LLP, New York, NY, for Defendants.

PAULEY, District Judge.

This copyright action raises issues concerning the copyrightability of photographs, the work-for-hire doctrine, joint authorship, and the nature of derivative works. Plaintiff SHL Imaging, Inc. (“SHL”) is owned by professional photographer Steven H. Lindner (“Lindner”). Lindner’s work has been published in The New York Times and Sports Illustrated. (Lindner Aff. ¶6.) The defendant Max Munn (“Munn”) is chairman and CEO of defendants Artisan House, Inc. (“Artisan”) and Interiors, Inc. (“Interiors”). The defendants design, manufacture and sell frames for pictures and mirrors. (Munn Aff. ¶3.)

In 1996, Munn hired Lindner to photograph mirrored picture frames manufactured and offered for sale by defendants. Lindner photographed approximately 130 different frames with the understanding that the photographs would be used as color slides by defendants’ sales force. Thereafter, Munn used the photographs in a catalogue, reproduced them in 5,000 brochures, and offered them as magazine “comps” or publicity releases. Defendants also provided Lindner’s photographs to Photo-2-Art, Ltd. so they could be scanned into a computer for manipulation and displayed to customers.

Defendants move for summary judgment on plaintiff’s copyright claims on the grounds that the photographs are not original, or alternatively, if they are, that defendants were either joint authors or the sole work-for-hire author. On July 20, 2000, this Court notified the parties that it was considering a grant of summary judgment to plaintiff and afforded defendants the opportunity to make additional arguments or submit additional evidence. Thereafter, defendants submitted a supplemental memorandum.

For the reasons that follow, defendants’ motion for summary judgment is denied, and this Court grants summary judgment to plaintiff on the issue of liability under the Copyright Act, 17 U.S.C. § 101, et seq. At the outset, this Court observes that its sua sponte grant of summary judgment rests on an analysis of issues raised by the defendants in their motion and supplemental submission. Thus, the defendants have not been prejudiced by a lack of notice or any inability to offer evidence. See Bridgeway Corp. v. Citibank, 201 F.3d 134, 140 (2d Cir.2000).

Prior to photographing the frames, Lindner made a number of creative decisions including selection of a camera (a handcrafted Hasselblad 500 EL), lenses (Zeiss 50mm and 80 mm), film type (C-Print negative Fuji ASA 160), paper type (seamless), as well as diffusers, reflectors, and lighting equipment. (Lindner Aff. ¶13.) Lindner supplied all of the photographic equipment for the process (Lindner Aff. ¶12.)

The photo shoot spanned four days at Interior’s factory. (Lindner Aff. ¶4.) Assisted by his employee Ersellia Ferron (“Ferron”), Lindner arranged both the lighting and staging of the frames.

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 of using “copy lighting” (two lights set up at 45 degree angles in front of the object being photographed), Lindner selected a single light source with a reflector in order to “fill out the shadows (but not eliminate them) to give a chiaroscuro effect that would wrap around the [frame] and give it depth.” (Lindner Aff. ¶17.) While Munn asserts that he “instructed Lindner precisely how [he] wanted the photographs taken, including the positioning and angle and appropriate lighting,” he provides no specifies. (Munn Aff. ¶12.) Lindner and Ferron alone set up the lighting, hung the frames and took the photographs, while Munn remained in his office. (Lindner Aff. ¶13; Ferron Dep. at 16.)

Photographing the frames was complicated by the reflection in the mirrors of several frames. (Lindner Aff. ¶17.) Lindner overcame this obstacle by creating a unique lighting design so that the mirrors would not reflect any part of the factory or the photographer. (Lindner Aff. ¶17.) The lighting design also enhanced the luster of each frame’s gilt. (Lindner Aff. ¶17.) As the shoot proceeded, Lindner also took Polaroid instant photographs “to check [the] lighting, angles and composition.” (Lindner Aff. ¶12.) Munn claims that he ordered the Polaroids to ensure Lindner was following his instructions. (Munn Reply Aff. ¶12.)

After the shoot concluded, plaintiff submitted a preliminary invoice to Munn, who rejected it. Thereafter, plaintiff submitted a second bill in the amount of $3,700, which was paid. (Lindner Aff. Ex. 2: 11/19/96 Invoice.) That bill bears Munn’s initials and the remark “OK” on its first page. (Lindner Aff. ¶20 & Ex. 2: 11/19/96 Invoice.) The invoice specifies: “Re: Photography of frames. Usage: For C-Prints to be used by sales people.” “C-Prints” is shorthand for negative color prints. (Lindner Aff. ¶7.)

Five months later, Lindner discovered that Artisan had used sixty-four of the photographs in a catalogue without securing his permission. After registering the photographs with the Copyright Office, plaintiff filed this infringement action. (Lindner Aff. ¶9.) During discovery, defendants revealed that they had made an additional 3,000 copies of the photographs for undisclosed purposes, reproduced them in 5,000 brochures, scanned eighty-three of them into a computer, and used the photographs as magazine “comps” or publicity releases, all without plaintiff’s permission. (Lindner Aff. ¶10.)

I. Summary Judgment Standards

Summary judgment may be granted only when there is no genuine issue of material fact remaining for trial, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). The burden of demonstrating the absence of any genuine dispute as to a material fact rests with the moving party. See Grady v. Affiliated Cent., Inc., 130 F.3d 553, 559 (2d Cir.1997). In determining whether the movant has met this burden, the Court must resolve all ambiguities and draw all permissible factual inferences in favor of the party opposing the motion. See Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1187 (2d Cir.1987).

If the moving party meets its initial burden, the non-moving party must then come forward with “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). The non-moving party must “do more than simply show there some metaphysical doubt as to the material facts.” ''Matsushita Elec. Indus. Co. v. Zenith Radio Corp.'', 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). Where it is apparent that no rational finder of fact “could find in favor of the non-moving party because the evidence to support its case is so slight,” summary judgment should be granted. Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir.1994).

It is well established that courts may grant summary judgment sua sponte when

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User:Saad Ali Khan Pakistan

Hello, My Name is Saad Ali Khan.

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 no material issue of fact is in dispute and the losing party was on notice that it had to come forward with all of its evidence. See Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986) (“district courts are widely acknowledged to possess the power to enter summary judgments sua sponte ”); Bridgeway Corp., 201 F.3d at 139 (“District courts are well advised to give clear and express notice before granting summary judgment sua sponte, even against parties who have themselves moved for summary judgment.”). This Court notified defendants that it was considering a grant of summary judgment for plaintiff on liability and afforded defendants additional time to submit further arguments or evidence. Accordingly, the absence of a motion by plaintiff is inconsequential. See Bridgeway, 201 F.3d at 139.

II. Prima Facie Case of Infringement

Plaintiff claims that defendants infringed its copyrights in the photographs. The Copyright Act does not define “infringement,” but rather states in conclusory fashion that “anyone who violates one of the exclusive rights of the copyright owner … is an infringer of copyright.” 17 U.S.C. § 501(a)(1996). Congress left the courts free to flesh out the outlines of a cause of action. Fundamentally, the elements required to establish a prima facie case of copyright infringement are: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publications, Inc. v. Rural Telephone Serv. Co., 498 U.S. 340, 361, 111 S.Ct. 1282, 1296, 118 L.Ed.2d 358 (1991).

Plaintiff obtained a certificate of registration from the Copyright Office within five years from the date of the photographs’ publication. (Lindner Aff. Ex. 2. Registration No. VA 855–059.) Under 17 U.S.C. § 410(c), the certificate constitutes prima facie evidence of the facts stated therein and of the originality of the work. Here the certificate states that plaintiff is the sole author of the photographs, and therefore, the owner of the copyrights. Defendants bear the burden of overcoming this statutory presumption. See Langman Fabrics v. Graff Californiawear, Inc., 160 F.3d 106, 111 (2d Cir.1998) (noting that “[t]he statutory presumption is by no means irrebutableirrebuttable [sic], but it does order the burden of proof”).

III. Derivative Works

In evaluating whether plaintiff has established ownership of a valid copyright, defendants argue that plaintiff’s photographs are derivative works that must satisfy a higher standard of “substantial originality.” (See Defs.’ Reply Br. at 5–11.) The nub of defendants’ argument is that the photographs are derivative works because they depict the defendants’ frames. (See, e.g., Defs.’ Br. at 4–13; Defs.’ Reply at 1–9.)

The Copyright Act defines a derivative work as "a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”."

17 U.S.C. § 101. Thus, a derivative work must incorporate a substantial element of a preexisting work of authorship and recast, transform, or adapt those elements.

Recently, the Ninth Circuit addressed the question of whether a photograph is a derivative work of the object it depicts. See Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1077–1082 (9th Cir.2000). Although the Ninth Circuit concluded that a photograph of a vodka bottle was not a derivative work of the bottle, it reached that holding only after

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