Oertel v. Wood
New York Supreme Court
This suit was instituted to protect the plaintiffs’ literary property in a picture in oil, painted by the plaintiff Oertel, and by him styled “ The Rock of Ages,” and to prevent the sale of photographic reproductions of such painting by the defendant. A preliminary injunction to restrain such sale, was granted by his honor Mr. Justice Barnard.
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This suit was instituted to protect the plaintiffs’ literary property in a picture in oil, painted by the plaintiff Oertel, and by him styled “ The Rock of Ages,” and to prevent the sale of photographic reproductions of such painting by the defendant. A preliminary injunction to restrain such sale, was granted by his honor Mr. Justice Barnard. The defendant demurred to the complaint for the alleged reason that the same did not state facts sufficient to constitute a cause of action. The defendant also moved, upon affidavits alleging that the original painting in oil had been sold by the…
1Opinion of the CourtCardozo, J.
This case cannot be distinguished in principle from the cases of Prince Albert agt. Strange, (2 De G. & Sm., 652,) and Turner agt. Robinson, (10 Ir. Ch., 510.) Perhaps the injunction is too broad, but that can be remedied. The motion to dissolve must be denied.
Ordinarily the question like that presented here, should not be passed upon on a motion to overrule a demurrer as frivolous, but when it has been fully argued, it may as well be disposed of on the merits as not, especially when those merits are really involved in the motion to dissolve the injunction.
The motion of the plaintiffs for…
2Cited by2 opinions
- Pushman v. New York Graphic Society, Inc.New York Court of Appeals · 1942
- Chamberlain v. FeldmanAppellate Division of the Supreme Court of the State of New York · 1948