The'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 congress “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 he 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.
Buie discharged.
Vide Sarony v. Burrow-Giles Lithographic Co., ante, 591, [S. C. Daily Register, vol. 23, -No. 132,] wherein Ooxe, J., sustains the constitutionality of the same act in an action for the infringement of a copyrighted photograph of Oscar Wilde.—[Rep.