Shining a bright light into the dark corners of the shadow-world of literary scams, schemes, and pitfalls. Also providing advice for writers, industry news, and commentary. Writer Beware® is sponsored by the Science Fiction and Fantasy Writers of America, Inc.

July 30, 2021

How Bad Contest Entry Rules Can be Mitigated: The Medium Writer's Challenge

Posted by Victoria Strauss for Writer Beware®

That's right, boys and girls--it's another of my posts about hinky contest rules. 

If you're a regular reader of this blog, you'll know I publish a lot of these. That's not because I like repeating's because bad contest legalese is depressingly common, especially in contests conducted by high-profile organizations or individuals, such as HBO's "Lovecraft Country" short story contest, or T.A. Barron's Once Upon a Villain flash fiction contest, or the Sunday Times/Audible Short story award, or any number of others. Because it's so common, though, it never hurts to put out another warning....especially when a contest offers the kind of prize money that's sure to attract droves of writers.

In a twist, though, I'm not just going to talk about greedy legalese, but also about how one contest sponsor responded to criticism and made it better. 

The Medium Writers Challenge is an especially rich contest, with a $50,000 grand prize, $10,000 for four finalists (one of the finalists will be the grand prize winner, so one person will actually win $60,000), and 100 honorable mentions who will each receive $100. 

To enter, writers choose a prompt, create an essay of 500 words or more, and publish it on Medium. A prestigious slate of judges that includes such luminaries as Roxane Gay and Natalie Portman will select four finalists, one for each prompt, and then choose the grand prize winner and the honorable mentions. The deadline to enter is August 24, 2021.

Moving on to the fine print, namely this paragraph of the official rules

I got several emails and some social media pings about this paragraph yesterday. The concern was with the license writers grant simply by entering the contest, the wording of which gives Medium "an irrevocable, royalty-free, worldwide, nonexclusive, sublicensable, assignable" license to do pretty much anything it wants with any entry, whether or not it's a winning entry. 

This kind of language is extremely common, especially, as I've mentioned, in high-profile contests. The intent isn't so much a nefarious scheme to steal writers' rights or bind them to eternal servitude, as it is a shortcut for contest sponsors, who don't have to fuss around with contracts for winners because they've already agreed to terms. It's very easy to mitigate such language--for instance, by releasing non-winning entrants from the license once the winners are declared--but, carelessly or lazily or just sharkily, depending on how many lawyers formulated the rules, many contest sponsors don't bother, even though it means that they retain rights they likely have no interest in and no intention of ever using. 

In Medium's case, though, they did take steps to mitigate. Note the second line of the paragraph, which limits the license to one year from the end of the contest period (presumably that's the August 24 deadline). In other words, this is not the perpetual license that some other contests demand: it has an endpoint, after which it expires.

Here's the interesting thing, though. Paragraph 10 didn't always read the way it does now. This is the original version, the one that got people upset:

Note the difference: there's no limit on the grant period. In this version of the contest rules, the license really is perpetual. 

Writers asked questions and spoke out on social media. To its credit, Medium took notice.
This is what can result when an organization re-thinks pointless legalese. I wish that happened more often.

Don't get me wrong. Medium's license language is still excessive, in my opinion, because there really is no reason for them to retain non-winners' rights once the winners are declared. Still, a year is better than forever.

Entrants also need to consider what they're granting if they do win. There's a lot of potential uses Medium can make of their work (it isn't clear to me that the license language limits Medium's use of entries in the way the third tweet claims), including creating derivative works and "incorporat[ing] the Submission, in whole or in part, into other works." $10,000 is a decent payday for that kind of grant. But is $100?

As always, read--and make sure you understand--the fine print.

July 23, 2021

Bad Contract Alert: ByteDance's Fictum Reading/Writing App

Posted by Victoria Strauss for Writer Beware®

Over the past year, I've gotten a flood of questions and complaints from writers who've been approached by reading/writing platforms or apps based in Hong Kong or Singapore. 

There's a growing number of these platforms, and they are aggressively soliciting for content, including on established platforms like Wattpad. While most of the solicitations target writers directly, agents are receiving approaches as well.

Some platforms appear professional, with contracts that are fairly reasonable and straightforward. Others...not so much. Last October, I wrote about the terrible contracts offered by A&D Entertainment and EMP Entertainment, two companies that are deputized to recruit for Webnovel.

A new player in the reading/writing app field is Fictum (domain registered just this past November). Available on Apple and Google Play, it's owned by ByteDance, the parent company of TikTok, and is currently recruiting writers with existing published books, as well as writers willing to produce 200,000 words or more of new material for its Long English Story Project

For new material, Fictum offers both exclusive and non-exclusive contracts, with different levels of financial remuneration that are rather confusingly described here. You must first publish three chapters in order to apply for a contract; once you're contracted, you must fulfill punishing word counts and maintain a grueling schedule in order to earn. For the exclusive contract, for instance, you must publish at least 1,000 words a day in order to receive a "daily update bonus" of $200 per month. More words equal more cash: if you can bang out 100,000 words a month, you get $400. Time is money, though: you can't take more than four days off in a single month, and if you fail to produce for more than four days in a row at any time, you forfeit payment.

I've seen one Fictum contract, offered for an existing published book. You can view it here. To put it mildly, there are issues of concern.

- The Grant of Rights is non-exclusive and time-limited--but it is also irrevocable. In other words, you aren't stuck forever--but you have no right to cancel. 

There was originally a clause allowing the author to terminate for cause, but in the contract I saw, that clause had been blacked out. The deletion wasn't as effective as someone thought, though, because when I converted the contract to PDF, the excised words showed up:

This isn't much better than saying "no, you can never cancel". You'd have to wait a year, and you could only invoke the clause if not a single person had accessed your work in all that time (which might be hard to show, given that Fictum doesn't have to tell you how your work is performing--see below). Talk about crafting an option so that it practically never happens! Plus, if even if you were unfortunate enough to fulfill the requirements, you'd still be screwed, because you'd have to give money back to Fictum:

Let me know if you can make sense of that formula.

- You must waive your moral rights. Moral rights include the right of attribution (the right to be identified as the author) and the right of integrity (the right to protect your work from changes that would be prejudicial to the work or to you). If you waive your moral rights, you surrender both. Among other things, this means that your work could be published without your name, or under someone else's name.

Moral rights aren't really recognized in the USA, but they are important in other countries, and the Fictum app is distributed in multiple nations across the world.

- The initial 2-year term auto-renews (at the publisher's discretion; the author doesn't have a say), but the language isn't clear.

Does this mean auto-renewal for a single 1-year period? Or for successive one-year periods? It's not clear. This is the kind of thing that really needs to be unambiguous.

- There's no fixed payment schedule, payment terms are opaque, and Fictum doesn't have to give you performance data. 

The payment scheme detailed in the contract is different from what's described on the Fictum website, likely because this contract was offered for a finished book rather than for a serial work not yet written. Collectively called a License Fee, payment consists of a "fixed royalty" (equivalent to an advance); a "contingent royalty" (a KDP Select-style payment based on reading metrics), and a performance-based bonus granted "from time to time". 

The fixed royalty (based on word count--around $600 for the book this contract was offered for) is payable 20 days after contract signing or manuscript acceptance, whichever is later. It must be recouped by contingent royalties; once it is, those royalties become payable. 

So far, so good. However, the formula for calculating contingent royalties is not exactly transparent:

Nowhere is it explained what's meant by "effective reading time", or "unit rate", or how either one is calculated, except to say that it's at the publisher's discretion. Nowhere is there a payment schedule to indicate when and how often contingent royalties are paid once the advance is recouped, other than to vaguely promise, further on in the contract, "commercially reasonable efforts to inform [Fictum's] discretion from time to time." (Might this suggest that Fictum doesn't expect it will have to regularly pay out contingent royalties?) 

Equally concerning: nowhere is there any language requiring Fictum to share performance data, such as how many readers have accessed your work. 

Bottom line: beyond the advance, you have absolutely no idea what financial remuneration you might receive, and no guarantee that you'll get any insight into how your work performs on the Fictum app.

- The grant term is time-limited, but Fictum's right to use and exploit your work is not. There are two areas where this applies. First, even after the contract ends, your work will continue to be hosted on Fictum's servers in order to service customers who've downloaded it, which they do on a "perpetual" basis. (This is a common feature of such apps and platforms; it's not so much a "beware" as it is a "be aware".)

Second, Fictum claims copyright on derivative works created by it in connection with its exploitation of your rights as granted in the contract, and can continue to exploit these derivative works "perpetually". So what exactly is meant by derivative works? The contract doesn't really say.

A previous clause discusses derivative works in the context of promotion, such as creating short video clips based on a work's characters or setting. Other than this, though, "derivative works" is not defined, and the word "including" in the final sentence of the clause above suggests that such works may not be limited to promotional materials.

- Anything you write during the term of the contract is subject to first refusal by Fictum. Not just work related to the contracted work: anything.

This is an onerous requirement.

- And finally, language like this is never an encouraging sign:

There's a lot of competition out there in the reading app sphere, with dozens of companies vying for content. Most have little or no name recognition. That's not true of ByteDance, which likely gives it a substantial recruitment advantage. 

That's unfortunate, not just because of the unfavorable contract terms discussed above, but because the writers being approached by the apps, many of whom are teenagers or college students, are among the most naive and least savvy I've ever encountered (at least, judging by the many questions and panicked "I signed up without reading the contract, how can I get free" pleas I'm receiving). Considering how long I've been doing the Writer Beware thing, that is saying something. 

July 2, 2021

Alert: Scammers Impersonating Major Motion Picture Studios

Posted by Victoria Strauss for Writer Beware®

I've written a number of posts about scammers impersonating literary agents and publishers. Writers should be aware that they're also impersonating major motion picture studios. 

Here's one example, from a scam that does business under at least three names: Orions Media Agency, Fox Media Studios Agency (note the way these scam names reference real companies), and PageTurner Press and Media. Despite their apparent US addresses and phone numbers, all are based in the Philippines (you can read more about the huge proliferation of overseas scammers here). (UPDATE: The scammers have added a new name: Experttell, aka Experttell Media.)

This is the initial pitch--which arrives, as always with this type of scam, out of the blue:

This is not the way things work: literary agents aren't "assigned" to represent you without your knowledge, and major film studios don't randomly stumble on books and reach out to agencies you never heard of, which then cold-call you. In fact, real agents only very rarely reach out to writers directly. For scammers, on the other hand, it's their main recruitment method. 

Any out-of-the-blue solicitation or offer should be treated with suspicion.

If the writer bites, they receive this. 

Note Allison's email address, which doesn't match Universal's email address protocol. It's always a good idea to search on this, and also on the email address itself; you can discover interesting things, such as that the domain was only registered this past March--not very plausible, given Universal Pictures' long history. In another revealing discrepancy, Allison Gray is a real person...but she works for Paramount.

"Allison" doesn't mention money. This is strategic: as any scammer knows, it's harder to say no when an offer is (purportedly) on the table. And money is definitely involved. The writer who responds with excitement to this INCREDIBLE OFFER learns that the "cinematic trailer" will cost them $3,500 (a cost the scammer may promise to share), and the "relicensing" of the book (there's no such thing) requires a further $1,099. 

I shouldn't need to say--again--that this is not how things work. If a film studio is interested in your work, they will pay you, not the other way around. Plus, the demand for your driver's license and passport suggests that it's not just your cash that will be stolen.

Here is the promised "pre-production agreement" (this time from another dba of this scam, Fox Media Studios Agency). "David Benson" does not appear to be an employee of Universal--or any film company. Allison Gray is cc'd, though at a different, and equally bogus, email address. Note also the identical scary pseudo-legal language at the bottom, which is likely intended to discourage writers from contacting people like me:

The money grab in this one is for the "Director's professional fee" as well as the supposed permits and clearances, which no doubt amount to several thousand dollars. Keep in mind that the writer has already paid nearly $5,000 for a (likely crappy) book trailer and the mythical book re-licensing.

Yet again, this is not how the industry works. Authors are never asked to bankroll their own films (at least, they're never asked to do so by reputable film companies). To the contrary: if a film of your book has been greenlighted, you will previously have received a considerable sum of money.

A final word. It's every writer's dream to have their book made into a movie. But the hard truth is that this is among the rarest of all outcomes of publishing a book. The vast majority of books--even very successful ones--never sell or option film rights. Where they do, it's via real, reputable agents or entertainment lawyers with track records that can be verified--not unknown parties who contact you out of the blue. 

Remember: solicitation is the number one sign of a scam. And there are more scams aggressively soliciting authors than ever. Be careful out there.

UPDATE 8/7/21: The scam is also soliciting as Netflix. Some of the language in the solicitation below is identical to that of the first fake Universal email above; note also the identical scary disclaimer in italics, and the fact that, although this came to the author as a direct solicitation and not through the filter of a fake agency, the scammers were too careless, or too lazy, to remove the references to "your agency".

As they often do, the scammers are using the name of a real person--except she's an actress, not a Netflix executive.

UPDATE 9/2/21: The scammers have added a new name: Experttell (aka Experttell Media), which is sending out email "offers" from Warner Bros. that are identical to the emails above.
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