Two very exciting things happened on the internet this last week!
One: Getty Images announced it would start licensing a portion of its massive image collection for no cost.
And, two: Amtrak embraced the fervor of the hashtag and established a for-real writer’s residency hosted on its long-distance trains.
Both things are ridiculously cool.
And both things came with fine print.
Why does fine print matter?
Well, first off it’s not really “fine print.” It’s the contract.
And the contract is The Deal.
Not what was announced on Twitter, not what was promised in an email, not that thing you hashed out over the phone: the deal is the contract, full stop.
Most contracts have language that makes this explicit. It’s usually a section called “Entire Agreement” and it shows up toward the end of the contract.
That section makes it clear that only the terms in the contract, and any terms in documents the contract references, are enforceable.
Why is that important to freelancers? This usually means that any conversations or agreements about the deal you made with the client before the contract was signed (or clicked-through) don’t count.
Oh, by the way…
For one, the license was only for non-commercial use and only applied if you embedded the image using their code.
Oh, and they might run advertisements on the embedded image. That you can’t control. And that you don’t benefit from.
Oh, and they can delete the images from the available database, and wherever you’ve embedded them, whenever they want and for whatever reason they want.
Also, they can cancel your account if they feel like it. Because.
Suddenly, the action heralded as generous and earth shattering looked a lot more like what it actually was: a savvy business decision.
Gimme, Gimme, Mine
I personally think that Amtrak handled this whole “creating a writer’s residency program because folks on Twitter are suddenly super excited about trains” thing very well. Heck, I was even briefly excited about trains.
What wasn’t handled as well was the terms they require applicants to accept. Specifically, the license Amtrak demands from all applicants.
The Grant of Rights applicants must provide if they want to apply is broad (see Section 6). It covers modifications, publication and “use” of the Application “for any purpose, including, but not limited to, advertising and marketing.” It’s the “any purpose” and “not limited to” pieces that started freaking people out.
“So to apply, I have to give you the right to publish the work I submit, forever, with no compensation? What??”
One thing Amtrak should have done, but didn’t do was define “Application” to specifically exclude the writing sample people submitted with the application.
If they had, they would have limited this broad license to what they probably most wanted, the application answers about why trains are the best place to write anything ever, but not make people worry they’ve just licensed away their writing.
They also could have limited the license they were getting to be non-exclusive, assuring applicants they could license their work to others (like, say, a publisher), and for a limited period of time. Because the usefulness of those answers doesn’t have a terribly long life. If the residency program goes well and continues, they’ll get new material every year expounding on the joy of writing on trains. And if it does poorly and they can it? Amtrak won’t need the application material any longer because they’ll revamp their advertising and marketing accordingly.
With those three changes, I doubt there would have been much concern over the terms.
Before you get all twisted about corporations being greedy, though, I see the same mistake made in contracts freelancers use. They take more than is reasonably necessary and, as you can see, that can introduce more problems than it actually solves. It’s worth it to re-read the contracts you’re using and make sure they only take what you need.
Read your contracts. Make sure everything you think is the deal is captured in the contract. Do not depend on assurances over email, Twitter, the phone or coffee. If it isn’t in the contract, it doesn’t count.
Make sure you understand exactly what you must, or can’t, do once you agree to the contract. If there is anything you don’t want to do, don’t agree to it. Sometimes it’s worth it to agree to a restriction because what you get is valuable, but only you will know when that’s true for you.
And, finally, please, when asking for a license from someone, only take what you might reasonably need.
What did you think of these two situations? Are you going to participate in either program?
Categories: Making Sense of Contracts