SCHREIBER V.
THORNTON.
603
authors onlY' and that the word" proprietor," as used in the copyright laws, ment the of an artist or author who might ·himself ohtain a copyright.1 1
HENRY
WADE ROGEl:S.
v.
1"4 Fed. Hep. 97.
SCIIREIDER and others, who sne as well for the United States as for themselves, v. THORNTON. 2 (District Court, E. D. Pennsylvania. 1. April 24,1883.)
COPYRTGHT-COrYING AND PUIlUSHTXG COPYRIGHTED PHOTOGRAPIT-CONSTI'l'UTIONAUTY OF HEY. DT. §§ 4U52 AND 49G5-POWER OF (JOIWI:ESS TO DECUHE COPYltIGIIT TO PHOPIlIETOIt O}' A PHOTOGTIAPil.
The act of congress (HcY. Dt. §§ 4952 and 4965) securing a copyright to the proprictor of a photograph, and imposing a pcnalty for the infringcmcnt of such copyright, is constitutbnul.
2.
QUI 'fA)I ACTfON-l'EXALTY FOI: TilE INFHINGEMENT OF COrYRlGilT TO TITE PHornnnOBS OF A l'HOTOGHAPH.
In an act ton by sevc.ral persons, bcing the proprietors of It duly copyrighted photograph, to recover, as well for the United btatcs as for themselvcs, the pcnalty for infringcment providcd by section 4%5, it appeared that the defcndant had cau,;ed lithographic copies of the photograph to he made, of which 14,SUQ werc fO'llld in his po,session or controL Held, that the defendant was liaille to a pcnalty of one dollar for each copy so found in his possession or control.
Motion for a New Trial. ThiS was a qui tam action, pursuant to section 4!)G5, Rev. St., brought by Francis Schreiber and others, suing us well for the United States as for themselves, against Edward B. 'l'hornton, to recover a statutory penalty for the copying, printing, pu blishing, selling, and exposing to sale by the defendant of a photograph, copyrighted by plaintiffs. The defendant pleaded "not guilty." The facts appearing upon the trial were similar to those disclosed by the evidence in a former trial for the same matter, and fully reported in Schreibcr v. Sharplcss, 6 FiW. REP. 175. The plaintiffs, being photographers, had made r. ::.d copyrighted, as proprietors, a certain photograph, the title thereof being "The Uother Elephant 'Hebe' and her baby 'Americus,' the first known to have been born in captivity in the world. Born at Philadelphia, United States, March 10, 1880. The property of Cooper and Bailey." Xotice of the copyright was printed on each copy of the photograph. The defendant had charge of the dry goods department of the business house of Sharpless & Sons, dealing in general merchandise, and desired a new label for certain goods. He purchased one of plaintiff's photographs, took it to a lithographer, and caused a lithographic copy thereof to be made, und 15,':WO copies _I
TIcporteu. by Albert B. Guilbert, Esq., of the Philadelphia bar.
G01
FEDERAL REPORTER.
thereof to be printed for labels. Four hundred of these were distributed as labels on l1ambrics, and as circulars, and 14,800 of them were subsequently found in the store in defendant's department, and in his possession or under his control. The court instructed the jury that under these circumstances the defendant was liable to a penalty of one dollar for every sheet of such copy found in his possession or under his control. The verdict was against the defendant for $14,800, and 6 cents costs. Whereupon the defendant moved for a new trial. Me KENNAN, J., was present at the argument of the rule. II. P. Brown, Ass't Dist. Atty., and John 1(. Valentine, Dist. Atty., for the United States. A. Sydney Biddle, for plaintiffs. E. Hunn, J1·., for defendant. 'rhe act of congress (section 4952) securing a copyright to the proprietor of a photograph, and in this case to a firm composed of several persons, and (section 4965) imposing a penalty for infringement, is unconstitutional, since by article 1, § 8, cl. 8, of the constitution, power is conferred upon 'longress "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries," and a mere proprietor is neither an author nor inventor, and a photograph of a natural object, as an elephant, is not a subject for such protection, within the meaning of the constitution. BUTLER, J. The denial of constitutional warrant for the statute authorizing the plaintiff's copyright, raises an important question. To justify this court in declaring the statute invalid, however, the fact should be reasonably free from doubt. Under the circumstances, I think the question should be left to the court of review. The other points made are not sustained, and Judgment must therefore be entered on the verdict. Rule discharged. Vide Sarony v. Burrow-Giles Litho.l]7'aphic Co., ante, 591, [So C. Daily Register, yol. 23, No. 132,] wllerein COXE, J., sllstains the constitutionality of the same act in an action for the infringement of a copyrighted photograph of Oscar Wilde.-[l{EP,
AMERICAN BELL TELEPrroNE Co.
and others. August 25, 1883.)
(Circuit Court, D. Ma,sachU$ctt" PATENTS
Fon
INVE:'\"TIOxs-BELL TELEPHONE.
The Bell telepllOne is not, by the Rcis instrument, and is infringed by the Dolbear apparatus, In which a part of Bell's process is employed. American Bell l'elephone Co. v. DlJlbear, 15 FED. REp. 448, affirmed.
In Equity.