PUBLISHED NOVEMBER 1997
by Ivan Hoffman, Publishing Attorney —
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. 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 publisher’s policy of returning all unsolicited manuscripts unopened should be applied in all instances.
Another choice is that the publisher can simply not return the ms. at all, keeping it unopened in some sort of archive for a number of years. This is probably best for the publisher but unfair to the writer. The compromise might be for the publisher, instead of sending back the ms., to send a letter to the writer explaining what the publisher is doing and offering to the writer the choice to send another SASE in which the publisher can return the unopened ms. or, failing to hear from the writer, then archive it. 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 seems like irrefutable evidence that it was not read.
Yet another choice for the publisher is to send the writer a form submission agreement to the effect that the writer understands that the publisher has not yet read the material; that the writer wishes the publisher to read the material but that the writer acknowledges that publisher is under no obligation to use the material and that publisher may already be considering or have under development similar material and that the writer accordingly, waives all claims that the publisher is going to use the material without compensation. The actual legal effect of such releases is open to question however.
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.
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.
Ivan Hoffman is a publishing, copyright, Internet law, recording, and music attorney as well as a published writer and author. He practices in the Los Angeles area. You may reach him at firstname.lastname@example.org or 818/342-1762.