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Amtrak Yikes!

Many in the writing community have heard of the woman who got a sort-of grant from Amtrak to be a writer in residence on board a train for a few days.  The program was kind of neat and Amtrak apparently decided to formalize it and make it available to more writers.  Writers get to wander about the country on a train, Amtrak gets some publicity, everybody wins.

And then the lawyers got hold of it.

If you want to apply to be an Amtrak writer in residence, you can find the guidelines and requirements here:


Although I'm not a lawyer, I've read an awful lot of contracts over the years, and this one raises a number of red flags for me.  We have this, for example, among the rules about what you can and cannot submit in the writing sample portion of the application:

[Each application must not] contain brand names or trademarks of any third party other than those owned by or licensed to Sponsor, subject to the Application complying with all other requirements of these Terms (including these Content Guidelines) and/or on the Website;

This means that if you unthinkingly use words like "kleenex," "xerox," "Oreo," "M&M," or "coke," your application will be rejected.  Although its technically true that in a novel or short story, trademarked words such as "kleenex" that have fallen into everyday use are supposed to be capitalized and followed by a TM symbol, in practice, they rarely are and no one really cares.  The companies who own those names occasionally publish ads in writing magazines demanding that writers follow the capitalization/TM rule, but it's purely a CYA move so a judge won't at some future date rule that they've failed to defend their trademark.  Mentioning it in a writing application is true overkill and shows that someone in the legal department is nervous about this program.

But that's just a small thing.  We also have this:

[Each application must not] contain content that is misleading, inappropriate, indecent, obscene, hateful, tortious [sic], defamatory, slanderous or libelous;

I'm not sure what "tortious" is a typo of.  "Tortuous"?  Just kidding!  "Tortious" means having to do with tort law. Why are they worried about this?  Does any writer say, "I'm going to write something tortious"?

But a bigger problem is the other stuff.  What's misleading mean?  What's inappropriate mean?  What's indecent mean?  What's obscene mean?  Can you truly mislead someone with a piece of fiction?  And isn't the villain supposed to mislead us anyway?  What's inappropriate?  Snuff fiction, I imagine.  They don't want to be connected with that.  What about a couple engaged in pre-marital sex?  Is that inappropriate to them?  What about a scene in which a man goes into a Vegas strip club?  That's perfectly legal, but is it inappropriate by their standards?  What about a woman who smokes pot in Colorado and then takes some home to Michigan and smokes it some more?  Would that be inappropriate?  It's partly legal.  What about a description of someone driving over the speed limit?  Is that inappropriate?  It's certainly illegal.

What's indecent or obscene?  A man and a woman french kissing on the beach?  Two teenagers doing the same thing?  Two women?  If so, what if the two women are married in a state that recognizes same-sex marriage?  Can they kiss and it not be indecent?  What if they're kissing on an Amtrack train that crosses from a state that recognizes same-sex marriage into a state that doesn't?  Is that partially indecent?

They don't define anything.  They don't even hint.

[Each application must not] contain content that is unlawful or in violation of or contrary to any applicable federal or state laws or regulations;

So I'm guessing the villain of your story can't actually break the law, even though he's the bad guy.  And forget about having a protagonist who breaks the law in any way, including driving over the speed limit (see above) to capture the bad guy.  Oh, and what about the pot smoking example above?  Would that be breaking this requirement?  What if you just mentioned someone smoking pot but didn't say what state it was in?  Then it might be legal, or it might not.  What do the guidelines say about that?

[Each application must not] contain content that advocates violent, reckless, irresponsible or otherwise unhealthy behavior;

So if you're writing about a character who has any kind of bad habit (like drinking too much), forget it.  If your good guy and your bad guy are going to get into a violent confrontation, forget it.  If your--oh, forget it!  Apparently, Amtrak thinks the only appropriate stuff to write is an "A is for apple" style children's book.

The point here is that fiction almost never shows a 1950s fairy-land where all citizens have good manners and walk calmly about the downtown without breaking the law, lying to each other, or being mean.  How could you apply for this grant without breaking these guidelines?  But there's more:

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 other words, we own every word of your writing sample forever. We can publish it, put it on our web site, edit it so it's no longer recognizable, or do anything else we please with it, including giving it to someone else.  And we don't have to pay you a cent.  You're essentially signing over your copyright to us.

For a non-fiction piece, this might not be a problem.  For a fiction piece, BIG PROBLEM.  Amtrak could rightly claim THEY OWN YOUR CHARACTERS.  If, for example, I stupidly submitted a part of my work in progress, Amtrak could immediately claim they own not just the words in the sample, but also Danr, Aisa, Talfi, and the fantasy world I'd built for them to live in.  By extension, they could claim to own, or at least share in, the copyrights on every book in the series.  If they tried to take these copyrights, I would have to go to court.  Quite likely a decent judge would rule in my favor, but I would still be out the expensive lawyer's fees and the time.

Run away!  Run away!  Take a bus, drive, fly.  But don't take a train!



( 2 comments — Leave a comment )
Mar. 9th, 2014 10:18 pm (UTC)
I am wondering if at least part of these rules are intended to govern the legality of the content vs. the legality of the actions depicted in the content. That is, it may be (for instance) that same-sex marriage is illegal in the state where the material is written, but writings about same-sex marriage are not. This might be okay by these rules. On the other hand, such writings in Russia would, at the moment, not be (of course, the Amtrak does not go to Russia so it's a moot point, but just as an example).

However, I certainly think that the underlying point - that the agreement sounds very vague and thus potentially likely to cause problems for the writer - is valid and worth taking into account.
Mar. 9th, 2014 10:34 pm (UTC)
When I cross-posted to Facebook, a lawyer friend of mine said it reads to him that the piece can't be illegal, as opposed to the events portrayed within the piece. But yeah, there are still the enormous problems with the copyright and use theft and the vague language of what's "obscene" or "appropriate."
( 2 comments — Leave a comment )

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