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 plaintiff Oertel, to dissolve the injunction. Such motion was opposed by affidavits denying the fact of such sale, and alleging the present possession by the plaintiff Oertel of the original picture.

Simultaneously with the motion to dissolve the injunction, the plaintiffs moved for judgment absolute on the ground of the frivolousness of the demurrer. Both motions were heard together by his honor Mr. Justice Cardozo, who ordered final judgment for the plaintiffs, and denied the motion to dissolve the injunction.

Facts admitted by the demurrer. The plaintiff Oertel is an artist. He composed and painted a picture intended to illustrate that particular portion of the Christian faith which affords the greatest comfort to its believers; and he borrowed from one of the most beautiful hymns that piety has produced, a name for the composition, viz.: “The Rock of Ages.” ,

Subsequently, Oertel gave to his co-plaintiff, James, an exclusive right to reproduce such picture as an engraving, chromo-lithograph, lithograph, or in any other manner, except .that of a facsimile oil painting; and James agreed to share with Oertel the profits to be derived from the sale of such reproductions.

Subsequently, the plaintiff, James, caused to be made and published a chromo-lithograph and photograph, and is about to publish an engraving of said painting; and he has exposed for sale, and sold, and is now selling in the market, large quantities of the chromo-lithograph and photograph, under the name of “ The Rock of Ages.”

The defendant, well knowing the premises and the exclu sive right of the plaintiffs in the said picture and in the aforesaid reproductions thereof, has been engaged in making and selling, under the name of “ The Rock of Ages,” a reproduction of said oil painting, in the form of a photograph thereof; and by means thereof he has diverted from the plaintiffs the sales of -their chromo-lithographs and photographs, which otherwise, and but for the acts of'the defendant, they would have made.

…

Citation profile

How this case has been treated — in progress