HANDLING UNSOLICITED MATERIAL 

IVAN HOFFMAN, B.A., J.D. 


        Publishers who find themselves the recipients of unsolicited material may frequently be tempted to ask “What’s in the envelope?”  “Can this one be the ‘big one’?”  “Is there something calling me from inside the manila package?”

        Finding out the answers to these questions requires a formal operating procedure in order that finding out may not turn out to be costly.  Given the similarity of many ideas that may be the subject for books, both fiction and non-fiction, as well as ideas for movies and the like, it is the wise publisher that puts into place some mechanism for dealing with unsolicited  submissions.  The potential for claims of misappropriation and the like, valid or not, can consume vast resources, both in time and money, for both the publisher and the writer.

        This article is not about the entirety of the law of misappropriation.  This article instead deals with putting into place a system that is designed to avoid, as much as possible, any such claims so that both publisher and writer feel more comfortable.

        The fundamental premise in any claim that an idea of an author was misappropriated by a publisher is that the publisher “received” the idea, had access to it.   Thus, the publisher can perhaps foreclose the entire controversy by creating a procedure designed to show that the publisher had no such access and did not receive the idea.

SOME CHOICES IN APPROACH

        What are the various ways of handling unsolicited material?  There are several choices.  The first way of course is to simply return the envelope, unopened, with a cover letter explaining that the publisher does not accept unsolicited material and including a submission agreement, discussed below.  I suggest that this cover letter be addressed to the author directly, not to “Dear Author,” so that the publisher maintains a “paper trail,” and that the publisher keep a copy of this letter.  I would also suggest that the publisher maintain a log including in the information when the ms. was received, from whom, when returned etc.  This of course presumes that the envelope has a return address on its cover.

        What frequently happens however, is that the publisher, or someone working for the publisher opens the envelope, even if it has a policy not to accept unsolicited material and then uses the self-addressed stamped envelope that came with the submission to return it to the author.  This obviously saves money but has the potential of leaving the publisher open to later claims that the material was read by the publisher and somehow found its way into one of the publisher’s books or another ms.  Thus the better policy is for the publisher to return all unsolicited manuscripts unopened, as discussed above.  Here too the above log should be kept.

        The best approach is that the publisher simply not return the manuscript or material at all, keeping the envelope unopened in some sort of archive for a number of years. This would especially apply if the submission comes without a return address.  If there is a return address, the publisher, instead of sending back the manuscript or material, should send a letter to the writer as above explaining that the publisher does not accept unsolicited material and enclosing a submission agreement.  The publisher is again wise to retain a copy of the letter and enter the information in the above-mentioned log.  I realize this entails some storage problems but it can be a potentially potent defense against later claims.  Having the actual sealed envelope creates potentially strong evidence that the material was not read.

        If the material comes in the form of an electronic submission via email, the publisher delete the submission and should send the submitter a return email indicating that the publisher does not read unsolicited submissions and has not read the said submission and has deleted the file.  That return email should include the above letter and submission agreement.

        As to the submission agreement referred to above, it should contain all the legally appropriate provisions and spaces for the writer to fill out, sign, date and return and state that when the publisher receives that back in the mail, the publisher may be again in contact with the submitter to resubmit the material.  The content of this submission agreement should be drafted by an attorney experienced in this area and should not be something the publisher creates itself.  The actual legal effect of such releases is open to question however.

CONCLUSION

        This article only deals with the procedures a publisher should set up and to which it should adhere with regard to unsolicited material.  There are many other issues that arise in this area of misappropriation of ideas but they are beyond the scope of this article.  NOTE: in this regard, the reader should absolutely read “Submitting Ideas.”

        Needless to say, there are of course no fool proof remedies with any procedure and no guarantee that any procedure will work.  And while some of these procedures may seem harsh to the writer, in truth they are not for they are designed not only to protect the publisher but the writer as well.  No writer wishes to believe that a publisher has taken the writer’s ideas and these procedures are intended to allow both parties to rest a bit easier.

        It is the wise publisher that looks down the road in setting up current operating policies. It is the wise author that understands these procedures and figures out an approach that works consistent with these procedures.

Copyright © 1996, 1997 Ivan Hoffman.  All Rights Reserved.

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This article is not legal advice and is not intended as legal advice.  This article is intended to provide only general, non-specific legal information.  This article is not intended to cover all the issues related to the topic discussed.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  This article is based on United States law.  You should consult with an attorney familiar with the issues and the laws of your country.  This article does not create any attorney client relationship and is not a solicitation.

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No portion of this article may be copied, retransmitted, reposted, duplicated or otherwise used without the express written approval of the author.


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