Much Ado About Nothing: The Brouhaha over #AmtrakResidency’s Terms of Service

You may have heard, if you’re friends with writers, that Amtrak, inspired by an exchange on Twitter, has come up with a really cool program called #AmtrakResidency where writers can catch a cross-country train (with Amtrak picking up the fare) and trek across the states while working on their next big novel. Truth be told, there is something very cool about writing while on a train. The world is your television, and seeing the country rush by you—given the atmosphere of riding the train across our majestic landscape—is nothing short of inspiring.

No, “rush by” is not the right description. From the window of your Amtrak observation desk or sleeper car, a cross-country odyssey unfolds all around you.

It all sound very poetic, which is why some crusaders of truth, justice, and “Your Content is YOURS” did a massive deep-dive into the terms of the #AmtrakResidency Program and  speculate there is trouble at mill when it comes to your content. Nuzzled within the terms of giving you, the author, free train fare in exchange for this opportunity to write, Amtrak reserves “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. (taken from #6. Grant of Rights of #AmtrakResidency Program)”

This sent some in the writing community into a right tizzy. New York Times Bestseller Diane Duanne warns on her blog “Never sell anyone world rights to any of your writing. Ever. Ever. Because who knows if that one piece of writing is the one that would have made you famous worldwide and rich beyond the dreams of avarice? Or more to the point, what if they later do something with your writing that is absolutely opposite to your intentions and which you find harmful or offensive? You’d have no recourse there either.”

She used bold AND italics. Wow. This must be serious.

So why am I not  worried about this wild audacity of Amtrak’s laying claim to my work and still hoping that #AmtrakResidency calls on me?

According to this alarmed concerned group of writers, Amtrak—in exchange for the #AmtrakResidency—is claiming right to your work for forever-plus-one, according to their terms. Diane is absolutely right in that you should never…no, wait, let me try it this way: NEVER…surrender your world rights blindly. So yes, you should take caution with anyone making such a claim like that.

But that isn’t what Amtrak is saying in Item #6. Here’s the clause in its entirety:

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.

Really read this item and you should catch this:

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.

I bolded the “Applicant’s Application” part because that is key here. The application does include a writing sample that you must submit, and this is what is driving some in the authors’ community bonkers.

And this is where I shrug my shoulders and ask, “So what?”

Amtrak is asking for a writing sample, and they should, as the trip they are offering is free. No, wait, let me try that again—the trip they are offering is free. They want to make sure that some are not gaming the system (and sure, there will always be those special few who will try) but they need to know if people can write, so provide them a sample.

“But wait,” you shout from the gallery, “does that mean that Amtrak owns that sample?” Well, they retain the rights to that sample, yes, as it is clearly stated in “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.” So they can use this sample in their advertising and marketing however they please. It is a sample, not a complete work. Something I will address later on.

“But wait, they’re not paying me for this work!” you scream. Well, if you get the #AmtrakResidency, you’re getting a free train ride across the country. And it’s round-trip. So yes, if goods or services of some kind are exchanging hands, you are getting paid.

“But wait,” you wait, beating your chest, “what if Amtrak lays claim on my latest work, and capitalize off my success?! What if, as Diane suggested, that one piece of writing is the one that would make me famous worldwide and rich beyond the dreams of avarice?” 

First, take this throat lozenge. That much caterwauling is going to do damage.

Next—and this may be a lot for you to take in—but you need to know a hard truth: Amtrak is not out to get you. Amtrak is also not in the business of stealing other’s literary work. They are in the business of getting people to talk about their experiences. Preferably positive ones. This is going to require marketing and advertising, and if you do happen to write the next Hunger Games, Divergence, or Harry Potter on Amtrak, Amtrak is going to want to brag about that; and therefore they are going to want to retain the rights on your application.

Now go back. Reread that last sentence. Then reread Item #6 again.

And just to make sure we’re all drinking the same Powerade: “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.” 

Now I’m not a lawyer, but as I read it, Amtrak is laying claim on your application, which includes the writing sample. Just a sample. Not a short story. Not a novel, but a sample. That’s all.

So either I need a lawyer, or Content Watchdogs are crying “Wolf!”

I used as my writing sample a chapter selection (not a whole chapter, mind you, but a selection) from my upcoming novel, Dawn’s Early Light. This is a perfectly acceptable writing sample as, while Ace owns the rights to publish Dawn’s Early Light, my wife and I still own the story. Therefore, we can offer up snippets of the book to book bloggers and reviewers. You know, snippets? Writing samples. Does this mean I have just handed over the keys of my steampunk empire to Amtrak? Hardly. I have given them, however, rights to use in their marketing material my likeness, anything I’ve said in the application, and use of the writing sample that came with the application. So long as Amtrak wants to, they can play with their heart’s content over that sample. But they cannot claim they now own Dawn’s Early Light, nor can they claim royalties on it as I submitted only a sample. Additionally, if Amtrak tries to use something other than the sample I submitted, they will find themselves in a world of trouble.

All this, if they select me and my wife for the #AmtrakResidency program. Which I hope they do.

I’m all for protecting the rights of authors and protecting your content, but before you buy into the hype, read the fine print, and then re-read it again; and if you still feel in the dark, consult a lawyer. When it comes to the #AmtrakResidency, there will be an exchange of data, I have no doubt, because there is no such thing as a free lunch. I still believe the program is not only fifty shades of awesome, but a great ways and means for getting people talking about Amtrak. And if there is a trade for a free round trip ticket is my writing used in their marketing and advertising, I’m okay with that. Why shouldn’t Amtrak brag a little that amazing things happened on their train while I was in residency there? Seriously—sign my up.

Oh yeah, that’s right. I already did.