Mar 8, 2014

Marriage Vows Don't Always Last Forever. But #AmtrakResidency's Rights To Your Work Would

Writers celebrated Amtrak’s residency program, rolling out free rides for up to 24 creatives. The catch: the train company owns application materials – forever and anywhere.

I'm referring, of course, to item six under Official Terms.
6.   Grant of RightsIn submitting an Application, Applicant hereby grants Sponsor the absolute, worldwide, and irrevocable right to use, modify, publish, publicly display, distribute, and copy Applicant’s Application, in whole or in part, for any purpose, including, but not limited to, advertising and marketing, and to sublicense such rights to any third parties. 
After outcry on Twitter – from freelance expert Michelle Goodman; web immersion director Frank Jonen; and poet and playwright Kelli Stevens Kane, among others – I walked the details over to David Ray, a friend and Seattle attorney who has a masters degree in Intellectual Property Law. His take: "I would advise that writers exercise caution when submitting materials under such contractual terms. If possible, applicants should create materials specifically for the contest that will never be used for any other purpose. While these terms are potentially unethical, they don’t appear to be per se illegal, and may well be enforceable."

So, hey, Amtrak: I'm sure you meant well. But some overzealous lawyer worded your contract too strongly and now you look like a content bully, trying to grab all rights to writing samples (even outside those needed for promoting your program) for just the chance of a free ride. No bueno.

You're doing a beautiful thing here, encouraging creativity to flourish on your tracks. Please don't sully it with contractual language that preys upon writers. We're suffering enough turbulence on the livelihood front right now, without residencies – the ostensible "good guys" – trying to lock down our copyrights, across all time and space.

I very much hope you'll reconsider this policy, Amtrak. You have a good thing going here. Please let it really shine!

Update, day 3 (March 10): still no word from the train company beyond vague promises to look into the terms and "reach out to/have a conversation with any applicant before using their work for promotional purposes" (a nice thought that holds no legal water). Meanwhile, 5,000 writers have signed away their rights and bad press is mounting, from Seattle's Stranger to Media Watchdog Jim Romenesko and an inspired rant by Novelist Diane Duane.

Here's one simple solution Amtrak could consider, which would only impact winners, not all applicants.

Portland's Union Station, June 2013. Image copyright www.amandacastleman.com

52 comments:

  1. Since I accidentally uploaded an entire novel, I really, really, REALLY hope I didn't give Amtrak publication rights. Ai yi yi.

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    1. You did, I'm so sorry to say, SpellSpinner. The best fix now: write #Amtrak and push for a revised policy! I could see the company using application materials, but claiming copyright on writing samples is a step too far!

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    2. is that only if they accept you and if you accept the gig??

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    3. If I'm reading it right, Tricia, it's ANY applicant. So you could apply, be unsuccessful and then see your sample used by Amtrak. OUCH!

      From the Official Terms: "In submitting an Application, Applicant hereby grants Sponsor the absolute, worldwide, and irrevocable right to use, modify, publish, publicly display, distribute, and copy Applicant’s Application, in whole or in part, for any purpose, including, but not limited to, advertising and marketing, and to sublicense such rights to any third parties."

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    4. Well, dang. New to this sort of thing too and I accidentally uploaded the whole shebang as well. Now I'm really upset.

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    5. There's a limit of ten pages for the writing sample. See number four How to Apply, step three: http://blog.amtrak.com/officialterms/

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    6. Slana, hopefully Amtrak will reconsider its policy... or at least not enforce any claims above the ten-page limit that Lara Whitmore kindly pointed out. Still, I can't help wondering how sub-license rights to these samples have anything to do with picking socially connected writers to ride the rails as brand ambassadors.

      (See Term #8, re: criteria, talking about "the quality and quantity of Entrant’s social media connections and activity, including the extensiveness of Entrant’s social community." It also mentions "Applicant[s] would function as an effective spokesperson/endorser of Sponsor’s Amtrak brand" and that they'll be judged on that element.)

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    7. Anonymous3:18 AM

      Lara, there may be a limit of ten pages, but it looks like the upload form allows you to submit more than that.

      Slana and Spellspinner, I suggest writing Amtrak and withdrawing your application if you're concerned about that clause. Then, send a certified letter to their legal department expressing that you do not agree to those terms and that you do not grant Amtrak any rights to use your material. That way, you've expressed in writing that you don't wish to assign them rights to your work. Do it right away. The sooner, the better. Tell them that you want them to destroy your writing sample, and that you want written assurance that they will not use your sample publicly. I'm guessing, you'll get it. Why? Because I highly doubt Amtrak will want the negative publicity of taking or exploiting a writer's work without pay. If even ONE exploited writer talked to the press about their experience, it would negate ANY good PR that Amtrak is gaining from this program in the first place. They absolutely won't want that. It's far easier for them to withdraw you from their program and destroy your sample that than to risk a PR nightmare that would follow Amtrak stealing the work of writers who merely applied for their residency program.

      That's what I would do in your situation...and next time, read the fine print before submitting.

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    8. Excellent advice. Especially that part about 'the sooner the better'. Deadline is only three weeks away. If these terms are being read in their entirety, I doubt many writers will be applying. JMO.

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    9. Good thinking, Anonymous. Kathie, I'm shocked how many writers are blazing past the terms, saying, "I can always produce more." And, OK, that's true. But they shouldn't have to! Trading absolute, worldwide, and irrevocable rights (including sub-licensing) to a corporation for a CHANCE at a <$1,000 train ride = a bum deal for authors.

      I hope Amtrak will look to more measured terms, like the new National Geographic--Fulbright, which asks only winners for blog posts and right of first refusal on works created during the fellowship. MUCH more civilized!

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  2. For what it's worth, this is basically the same waiver as has been used on photography contests since the beginning of time. It's basically a way for a magazine or company to get a quick (and cheap) collection of works they can reuse. Notice that it doesn't say "exclusive" rights, meaning you could still sell your content elsewhere that doesn't also require exclusive use. In the photography world, that means you can submit an image for a contest while also selling it as stock.

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    1. Very good point, Mike. But we're dealing with very different economies of scale, when people are uploading chapters – or entire books – as samples to #AmtrakResidency. (Not that a TON of effort doesn't go into photographs. I shoot professionally and know that firsthand, as do you.) But with the broad wording here, Amtrak could morph SpellSpinner's novel into a movie without giving the author a cent. And even on a less drastic level, editors aren't as open to recycled copy as they are stock photographs: typically authors receive 30% of the original fee or less for previously published works. So this policy can hurt writers in a variety of ways, none of which I think Amtrak intended...

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    2. Uploaded books must be very short stories -- the sample limit is 10 pages. :)

      And you're not giving up the copyright on your material, you're just giving Amtrak the right to reproduce it (and edit as they see fit) without further compensation.

      I don't think this is as bad as it's being made out to be...

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    3. Spoken like a photog. C'mon, Mike, we don't want to go the way of Getty here!

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    4. How does, "the right to reproduce it (and edit as they see fit) without further compensation," not seem "as bad"?

      For writers, that is EVERYTHING.

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    5. The novel I uploaded was published by Random Penguin House (or whoever they are now) a few years back, but I got my rights back and am now self-publishing it. I feel sick that I didn't read the terms before hitting "submit." The reason why I didn't? By the time you get to the notice that there are "official terms" to read, you have already spent a considerable amount of time filling in the form. And I didn't want to click away from the screen and perhaps lose what I had typed. So I thought, "Oh, well," and hit the button. The novel did not exceed the space limitations, which was the only limitation I saw. DUMB. But I still can't believe Amtrak would steal our work. They are not a publishing company, and those who have mentioned the PR nightmare are surely correct. Fingers crossed.

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    6. I have to agree with Lawordsnflowers here, Mike. For photographers, contests offer a chance to gain recognition and show off their chops: that can't happen effectively without reproducing the art. But Amtrak is running a residency, which implies support for the arts; it's not building a showcase. So why the super-aggressive grab of all rights, even for people who don't win?

      Clause #6 looks like leftover legalese from some work-for-hire contract. I'm really hoping Amtrak reconsiders its position and models its residency along kinder, more writer-positive lines.

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  3. As a playwright, publishing portions of my sample play of which Dramatic Publishing holds the rights in terms of PERFORMANCE, does not impact me. It is not exclusive rights, in any case, and I actually don't think it gives them the right to morph a story into a screenplay because that is not covered under the umbrella of publishing, or even modifying a story. It is FILMING a story, or PRODUCING A PLAY onstage. And they'd have to deal in my case with Dramatic Publishing. I don't think they'll do that, or that they actually want to do that.

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    1. Daleth7:40 AM

      Making a movie from a book is making a derivative work. If you own the copyright you have the right to do that, but this clause doesn't transfer copyright to Amtrak and I agree, it doesn't appear to permit the making of derivative works.

      It's still a huge content grab, though. And although it's not exclusive, it does prevent you from giving exclusive rights to anyone else (since Amtrak already has rights, thus no one else's can be exclusive). That could certainly impact the value of your work.

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    2. Hi Cheryldee, I don't know much about the performance side of media law, but I'd be concerned about the sub-licensing rights. More to the point: this is too big an ask for just a CHANCE at a <$1,000 prize. Our work is worth more, but unless we make that clear, companies will soak us for all we're worth with exploitative terms and promises of "exposure."

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  4. And the right to use is not exclusive rights, nor is it "owning" the rights. Those are two different privileges.

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    1. Daleth7:42 AM

      It is owning SOME rights, though--namely the nonexclusive but irrevocable rights "to use, modify, publish, publicly display, distribute, and copy" what you submit to them. Amtrak's clause makes it own those rights permanently without having to pay you a dime.

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    2. Good point, Cheryldee, but I agree with Daleth. The Amtrak rights grab is so intensive that, for most intents and purposes, it "owns" the work. The writers can no longer control the shape of their work, where it appears or how much they get paid for it.

      As the Novelist Diane Duane says, "Give away world rights to something for a single lousy train ticket? I don’t think so. They could plate the inside of that sleeper with platinum and lay on catering from Dallmayr and I still wouldn’t do it if it meant they got to keep world rights."

      http://dduane.tumblr.com/post/79161065289/the-amtrak-residency-why-i-think-this-is-a-terrible

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  5. Hi Cheryldee, thanks for weighing in. I agree that Amtrak is unlikely to make a movie out of someone's sample chapter or novel. But that doesn't change the overly broad, writer-hostile grab for rights here: something we all need to band together and fight, even if it doesn't impact us directly.

    Writers can't submit one image in a string of 10 similar ones like photographers. Once we sign over rights, that limits our use of the material and often its value (see above).

    Additionally, I feel Amtrak shouldn't have any use of materials submitted by applicants it rejects. That's just greedy. For me, the potential of a few free days travel doesn't justify the price being asked here, pure and simple...

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    1. "Writers can't submit one image in a string of 10 similar ones like photographers."

      For what it's worth, neither can photographers. The only time I've seen the 1 image out of 10 similars come into play was when a client lost (this was back in the day of slides) the original and had to pay for the exclusive rights to that image since, by losing the slide, that was basically what they had done. The photographer had several similars that they were still able to use and sell. However, if the client had purchased an exclusive on the image in the first place, the photographer would have relinquished the rights to all similars.

      Anyhow, my point isn't to defend Amtrak's legalese -- it reads like standard contest legalese and should have been written more like legalese for an application. (Though, honestly, this is equal parts application and contest). My point is that the discussion around what Amtrak can do with your content has gone hyperbolic and I don't think that helps anyone.

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    2. I know a couple of professional photographers who submit B-roll to average-Joe competitions, Mike. I wouldn't -- nor would you. But it does happen... and that's not a luxury open to writers.

      I agree that #AmtrakResidency is more like a competition for brand ambassadorship than a residency, and the confusion in terms has fueled a lot of steam (my own and the Twittersphere's). The train company has become a focal point for years, if not decades, of frustration about writers' work being devalued. But these are important conversations to have, even if they're uncomfortable.

      You know what makes things less uncomfortable? BEER! Let me buy you a pint and brainwash you one of these days. We miss you at the office!

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    3. Always happy to be brainwashed when you're buying. I'm free tomorrow! :)

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    4. Sweet! Let's do this, Mike. Check yer phone.

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  6. I tried to send them an e-mail to revoke my application. There is an e-mail at the bottom of the Official Rules page. The e-mail didn't work - it got kicked back. Anyone know an easy way to contact them?

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    1. If memory serves, some people have been emailing social@amtrak.com instead, Stacy. Maybe that's worth a try? Good luck!

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  7. I would guess that the rights grab (of accepted as well as rejected applications) is to protect Amtrak's ability to make ad copy out of an idea that's similar (or identical to) an applicant's work sample or application responses. Note the important last paragraph in #5.

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    1. That makes sense, Kelli, but I still find this at odds with the idea of a "residency." This feels more like a brand ambassadorship than support of the arts, sadly.

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    2. That should be covered by clause #5. Clause #6 is intended to let them use your actual application in ads and promotions, which I think is totally fair. I just went them to exclude the writing sample.

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    3. I agree that applications are fair play, Reina (though ideally that would only apply to winners. Why would Amtrak want to feature a unsuccessful applicant anyway?). But the overly broad language seems to include samples as it stands -- and takes a staggering array of rights, well beyond the basics needed for promotion.

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  8. Inadvertently, I submitted 20 pages of my WIP. By submitting too many pages am I technically not following the rules of the application and does this therefore void my application? I'm wondering if this might be a loophole for those who submitted whole novels and want to get out of this contract?

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    1. Possible, Writers by the Shore. Maybe email social@amtrak.com to be sure... or sit tight for a day or two. It sounds like Amtrak is reconsidering its terms, after the tempest in a teacup this weekend!

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  9. I submitted a previously published piece of writing, with original publication information included. While the terms say that the writing sample could be previously published, I now wonder if this will void my application. I'm watching closely to see what happens with the terms, which Amtrak says they're revisiting, and am considering withdrawing my application too.

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    1. I'm no lawyer, Boston Writer, but if the terms permit previously published work, it sounds like you should be OK (and in better shape than people inadvertently signing away rights on fresh material)!

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    2. I submitted a short story I published on my blog. I thought long and hard about submitting it - not because I was concerned about copyright but because of the content. It is essentially a ghost story, set on the City of New Orleans, and it directly references two Amtrak incidents the train was involved in. I was a little worried that Amtrak wouldn't appreciate having old trouble revisited, but it is one of my favorite stories. Since I'd already published the story on my blog, and couldn't really see it being published anywhere else, I wasn't too worried about it. That said, I wouldn't want to submit a full novel or even part of a work in progress if Amtrak is going to claim ownership.

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    3. Your story sounds cool, NC Narrator. I'm still not a fan of donating work to big companies: that risks devaluing what writers do. I'd rather volunteer for charities or friends' startups!

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  10. I'd imagine that this is a case of lawyers gone wild. (Like Facebook claiming to have non-exclusive rights to anything and everything you post on FB, presumably as a corporate CYA measure.)

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    1. Lawyers gone wild: I love it, Durant! I agree, this looks like a move of corporate ignorance, not intent. But Amtrak needs to stop with the vague "of course we'd check in first" promises and revise those terms, before this program becomes synonymous with "shaking down writers."

      Man, would you just love to hear Harlan Ellison on this topic? Maybe we should do a Kickstarter...

      https://www.youtube.com/watch?v=mj5IV23g-fE

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  11. Perhaps I am jaded now but I wasn't surprised at the language at all. I think that what writers need to do in order to apply is to write something specifically for this contest, rather than try to repurpose something that is already in progress. The contest goes on for a year so people can and should take their time to craft something new and fresh that works. It isn't a literary magazine or an award for major monetary gain. It is simply a free trip on a train. The value is less than $1000. As creatives, we should be able to create a new work that is reflective of our abilities and yet won't be a hardship if it is chosen for a campaign. At least that's my takeaway. I'm still applying. But not using my WIP for the application.

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    1. I'm jaded in a different direction, Nicole! I value my work too much to trade it to a corporation for the mere CHANCE at a train ride. A trip – I might add – where winners will act as brand ambassadors on social media. That's the sort of work that generally racks up $125-150 an hour in consulting bills: I even knew someone who earned $5 a word for promotions of that type. Add in all the publicity – and potential use and sales of applicants’ work – and Amtrak could be saving QUITE the chunk of change here, even offset against the expense of giving away 24 berths.

      But money aside, I strongly feel that a "residency" should support writers, not squeeze them for free material, even if they don't win.

      I love that your creativity flows freely enough to craft something just for the competition. But that -- and the "other contests do the same" arguments -- still don't justify the rights grab for me.

      C’mon, Amtrak, step up a be a GOOD patron of the arts, not just another company sharking around for free content!

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  12. Here's the link to the office of Amtrak's Inspector General. I just wrote that office a letter to get it in writing to them. It's not certified or anything like that, but it does at least inform them of the issue. If enough people send messages, I'm confident they'll act.

    http://www.amtrakoig.gov/content/contact-inspector-general

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    1. Nice, Ron, and thanks for sharing the info. I'd love to know what you hear back!

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    2. Anonymous8:55 PM

      I submitted to that email just now as well. Crossing my fingers!

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  13. I understand from various folks on Facebook and Twitter that Amtrak is in the process of rewriting the terms. Why they haven't suspended the contest in the meantime, I have no idea. So, there is no rush to submit under the current, flawed guidelines.

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  14. Well, in the meantime, Amtrak has garnered the rights to 5,000 people's work, Anoli1. But hopefully this has all been a big, over-zealous legal department blunder and nothing sinister will come of it! I just hope the train company makes an announcement soon, as the bad press is really starting to pile up...

    http://slog.thestranger.com/slog/archives/2014/03/10/five-thousand-writers-gave-up-their-rights-to-ride-amtrak-for-free

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  15. For me, if they used my work and put it out there, I would be quite happy. I uploaded something that doesn't have use elsewhere so go at Amtrak

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  16. Thanks for commenting, Coleen, and I wish you the best of luck with it. But I prefer to get paid for corporate submissions, and to donate only to non-profits and friends' start-ups. And I do think there's a bigger picture here: if we, as writers, don't value our work, how can we expect the marketplace to?

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  17. Hope they make those adjustments

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