As a pop-art devotee, Artist will create an original collage of photographs, then reproduce the original in limited numbers of prints. Artist has been creating a series of collages depicting famous science fiction writers. Each piece in this series, whether original or reproduced print, is named using the first name of the writer depicted. Artist’s most recent work is called Octavia, after the writer Octavia Butler. Per Artist’s custom, both the original Octavia collage and its prints are referred to as Octavia.
Collector came to view the original Octavia collage, and was a big fan of the piece. This was unsurprising, as Collector has long been a fan of Artist’s work and had purchased a print of every piece in the current science fiction series: Isaac, Ursula, Philip, Mary, and Margaret. After viewing the Octavia collage, Collector emailed Artist:
As always, I love your work and absolutely must have Octavia. Can I give you $1,000 for her?
I’m so glad you like her! I think she is my favorite thus far. Octavia will be priced at $1,500, but if you are interested I will sell to you before offering any to the public. I would be happy to deliver it to your home like last time.
Collector then replied:
Wonderful, I am happy to accept your price of $1,500. If possible, might you deliver Octavia to my office instead of my home? Let me know if that’s a problem, and I’ll make alternate arrangements with a courier service.
Artist replied that he would be happy to arrange delivery to Collector’s office. When a print reproduction arrived, however, Collector refused delivery, saying that he had no idea that Artist referred to the prints by the same name as the original artwork, and that he had purchased the original collage, not a reproduction. Artist has since refused to deliver the original collage, arguing that he intended only to sell the prints that he also calls Octavia, not the original collage. Collector has sued for breach of contract.
- Did Collector’s change to the delivery location of Octavia mean that his purported acceptance of Artist’s offer was invalid? Explain.
- How will a court likely resolve the confusion regarding the term “Octavia?” Explain.