Wednesday, March 12, 2014

Rights Concerns: Amtrak Residency Program

Posted by Victoria Strauss for Writer Beware

The Internet has been buzzing over the past week over the announcement of a writer-focused initiative from Amtrak: the Amtrak Residency Program.
#AmtrakResidency was designed to allow creative professionals who are passionate about train travel and writing to work on their craft in an inspiring environment. Round-trip train travel will be provided on an Amtrak long-distance route. Each resident will be given a private sleeper car, equipped with a desk, a bed and a window to watch the American countryside roll by for inspiration. Routes will be determined based on availability.
Now, I personally can't figure out why anyone would find this tempting. Then again, I'm a veteran of Amtrak's overcrowded Boston-to-Washington corridor, where late arrivals and yucky restrooms are always a possibility. I've also done long-distance train traveling, and am painfully familiar with what Amtrak means by a "bed." (Have any of you seen the Sex and the City episode where Carrie and Samantha, anticipating a romantic train trip, discover the reality of a sleeper car? Yeah. It was like that.) So consider me battle-scarred.

Nevertheless, the idea of writing on a train seems to have wide appeal. Announcement of the Residency Program was greeted with many happy tweets and glowing social media shares. Until, that is, writers started looking at the fine print, a.k.a. Amtrak's Official Terms.

The major concern is the Grant of Rights (bolding is mine):
6.   Grant of Rights: 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. In addition, Applicant hereby represents that he/she has obtained the necessary rights from any persons identified in the Application (if any persons are minors, then the written consent of and grant from the minor’s parent or legal guardian); and, Applicant grants Sponsor the absolute, worldwide, and irrevocable right to use, modify, publish, publicly display, distribute, and copy the name, image, and/or likeness of Applicant and the names of any such persons identified in the Application for any purpose, including, but not limited to, advertising and marketing. For the avoidance of doubt, one’s Application will NOT be kept confidential (and, for this reason, it is recommended that the writing sample and answers to questions not contain any personally identifiable information – e.g., name or e-mail address – of Applicant.) Upon Sponsor's request and without compensation, Applicant agrees to sign any additional documentation that Sponsor may require so as to effect, perfect or record the preceding grant of rights and/or to furnish Sponsor with written proof that he/she has secured any and all necessary third party consents relative to the Application.
I don't think anyone should be surprised that Amtrak wants to use the Residency Program for advertising and marketing. In this, it's little different from many other organizations. Even many publishing contracts require authors to grant the right to use their names, images, and excerpts from their work for publicity purposes. If you don't like that, don't apply.

However, the open-ended nature of the Grant of Rights is troubling. It includes all applicants--not just those who are accepted for Residencies. It extends indefinitely. And the whole application, which doesn't require applicants to provide a street address or phone number, but does require them to share their email address and Twitter handle, is non-confidential and can be copied and distributed at will.

What problems might this pose? Well, you might not want to grant a big corporation the power to share your email address.

You also might not want to grant it sweeping publishing rights (and, as I was reminded the other day, Amtrak is a publisher: it has its own magazine, Arrive). For most people, the writing sample they submit (just 10 pages) is going to be a partial; if it's unpublished and part of a much longer work, rights conflicts probably aren't an issue. A professional book publisher, for instance, isn't likely to care that you've encumbered rights to 10 pages of your 350-page novel. But what if the sample is part of a shorter work, of which 10 pages is a much larger proportion? A short fiction or freelance market might well have a problem with that. And if the sample is a complete story or article, forget it--you won't be able to place it anywhere else.

Also, if your sample is part of a published work, how might the rights you've already granted conflict with the rights Amtrak is demanding? And why should writers who submit and are not chosen for the Residency have to struggle with these questions at all?

There's been a fair bit of concern over all of this over the past few days. In a discussion on Reddit, Amtrak's Social Media Director, Julia Quinn, has said that negative feedback is being "forwarded on internally." Let's hope so. In the meantime, if Julia happens to be reading, here are my suggestions for improvement--and don't worry, they're pretty easy:

1. Terminate the Grant of Rights on rejection. If you're not chosen for a Residency, your rights automatically return to you, free and clear.

2. Make the Grant of Rights nonexclusive. If successful applicants decide to market the work of which their sample is a part, this would eliminate any question about whether someone else has the right to publish.

3. Limit the term of the Grant of Rights. To a period of 5 years, for instance.

4. Limit the application's non-confidentiality to writers' names, writing samples, and writing question responses. This would allow Amtrak plenty of material for marketing and publicity, while relieving writers of the worry that their contact info might be made public.

5. Make the changes retroactive. If the terms are improved, writers who've already applied should be included.

15 comments:

Jennifer at WriteKidsBooks said...

Wow, I've been seeing a lot of buzz on various LinkedIn groups about this residency. Passed on a link to your post so others will be aware. Thanks for flagging this!

Anonymous said...

I've noticed that Amtrak's copywriters sometimes have trouble expressing themselves, and this is one more example. "Each resident will be given a private sleeper car..."

They just promised each resident an entire railroad car to themselves during the trip. There are such things, usually owned by railfan millionaires who pay to hook them on Amtrak engines, but none owned by Amtrak, as far as I know. Surely what Amtrak is actually offering is a "private room (or more likely a roomette) in a sleeper car."

If Amtrak sticks to the wording and demands all rights, I hope the winner does the same and demands the trip in a private sleeper car. :-)

Jeremy Simpson said...

Hmmm...maybe we should practice writing the terms of our counter-offers?

Katharine Swan said...

I seriously hope they fix the terms. I actually do think it's an interesting offer -- I took my first overnight train trip 18 months ago, and loved it. I thought it was great writerly inspiration, although we didn't have wifi, sadly. If I didn't have a home, husband, pets, and other responsibilities, I would totally be interested in this -- IF they fixed their terms, of course!

Karen said...

worldwide, unlimited claims to anything via contract is unenforceable in court. this is common knowledge in the legal world. that being said, parties include unenforceable language in contracts all the time. we know it will not hold up in court, but how many parties will sue?

Julie the Jarhead said...

I'd rather pay $50 and take a 2-hour round-trip from Boston MA to Freeport ME than sign my rights away and risk being next to a snorer and have to shell out taxes and the ubiquitous "other costs."

But the idea of somewhere with NO WiFi is rather appealing.

Julie the Jarhead
(I am writing a crime thriller about the facility and malleability of memory.)

Victoria Strauss said...

Sorry, Julie--Amtrak does have wi-fi (wink). At least it does in the Boston-Washington corridor.

ckcrouch.com said...

And in the first post I read they weren't expecting you to hand over the material. Not that I would give it a try because I've heard their trains are horrible time wise and stuff. Not all like European ones.

TayƩ Foster Bradshaw said...

Wow, thanks for posting the information.

Gillian Bagwell said...

Good points, but I doubt that Amtrak has any interest in publishing applicants' email addresses, phone numbers, or addresses.
What they are more likely to want to publish are the 1000-word section of the application "Why Do You Want an Amtrak Residency?" and the 1000-word section, "How Would This Residency Benefit Your Writing?"
The application asks applicants to upload a writing sample of no larger than 24 MB (I don't know how many pages that works out to). There are no further specifications. There is no reason that the sample couldn't be an excerpt from something previously published or a blog post.

Leigh Ward-Smith said...

I, too, had been gung-ho in reading about the Amtrak residency, though I knew it would be an extreme long-shot. Although I understand the marketing motive, my hang-up was my being annoyed that they want what seems to me to be an established author or personality with a huge, groomed following or platform. It's obviously not that these folks lack merit, but for me it's about walking the undiscovered country, so to speak, of other writers worthily doing their craft. In any case, your arguments are very cogent; I second your suggestions. I had not dug into reading the particulars of the contract, and this does cause me a lot of pause. I was eyeing a short story of mine that's rail-related, and might have been willing to do what's tantamount to a sacrifice of it for this cause. I'm dithering at this point; much more pondering to do. In the meantime, I'm sharing this information. Thank you!

Victoria Strauss said...

Gillian--

I agree with you--Amtrak isn't intending to broadcast writers' private information all over the web, and I also doubt that it wants perpetual rights to successful applicants' writing samples--let alone the writing samples of the hundreds of non-successful applicants.

"Intend," however, is not legally binding (even if you know for sure what's intended, which here, in fact, we don't). Regardless of what Amtrak intends, the relationship between Amtrak and applicants is governed by the application guidelines. If Amtrak plans to keep email addresses confidential, if it doesn't want perpetual rights to hundreds of writing samples, why not craft the guidelines to reflect this? Why, instead, toss out something so vague, open-ended, and sweeping? It's typical legalistic overkill, and completely unnecessary. It's also disrespectful of the writers who are applying.

I've just heard too many sad stories from writers who signed bad contracts believing that their publishers didn't "intend" to do or claim whatever it was the contract empowered the publishers to do and claim. In signing any kind of contract, or agreeing to any kind of guidelines, writers should always take into account that the publisher or whoever may do exactly what the language of the contract or guidelines empowers it to do--no matter how unlikely that may seem at the time.

some author said...

Leigh, I actually think the ideal candidate would be a self-publisher who's very into networking.

I'm traditionally published. I'm not a big name, but my books sold over 100k copies last year. I have no social media presence, however.

I see self-published authors with 10,000 Twitter followers. Judging by their amazon sales ranks, they're not selling any books, but they definitely have the social media presence Amtrak wants.

That's who has the best chance. I doubt any big name authors will enter. As for me, if I want to go on Amtrak I'll buy a ticket.

Robyn LaRue said...

While I'd love to be accepted for such a program, my general assumption is that it's a serious long shot, and that's a pity. If they re-wrote the terms and offered a low-cost ticket, more of us could take advantage, they'd get the publicity, and we could take day trips or even longer trips.

kihebard said...

A recurring complaint about the terms of the Amtrak Residency has been the (possible) open availability of name and contact information. This is a problem? As writers, especially as writers who want to be published (and, presumably, PAID), I would think it preferable to be contactable directly by those who might become intrigued by whatever other material is being displayed...