HBO’s buzzed-about new series Lovecraft Country has spawned a short story contest: For the Love of the Craft.
Co-sponsored by HBO and The Root, the contest invites writers “to pick a decade or an important moment in Black American history, and weave a tale of the monsters that litter that time.” There’s a $5,000 prize for the winner, along with publication of their story on The Root and mentoring from writers on the show. The submission deadline is September 18.
As always, the devil is in the details. In this case, as so often with writing competitions, that’s the official contest rules. (These are only accessible via Submittable, and you must have an account.) Here’s the passage that concerns me:
To break the small-print legal language down:
- Just by submitting your entry, you agree to grant HBO and G/O Media, Inc. (The Root’s parent company) an exclusive six-month license to your work.
- The license is “irrevocable, worldwide, perpetual, fully-paid-up and royalty-free, sub-licensable, [and] transferable”, and empowers HBO and The Root “to use, publish, distribute, copy, edit, adapt, and perform your Entry or any elements thereof…online, in print, or in any other format, for any commercial or noncommercial purposes (e.g., marketing; advertising or native advertising; promotion; editorial coverage), whether related or unrelated to the Contest.”
All of this is, no doubt, intended to allow HBO and The Root to market and publicize the contest, rather than to engage in the wholesale theft of rights. Nowhere in the contest description or rules is it indicated that any entries other than the winner’s will be published. On the other hand, nothing in the rules prevents The Root from publishing entrants other than the winner–or bars HBO from, for instance, turning an entry into an episode. And remember, the license is “royalty-free.”
Bottom line: I don’t suspect nefarious intent here, but this is a very sweeping license, and there are potential unforeseen consequences. You need to be sure you understand what you’re agreeing to here, and are comfortable with all that it implies.
- After the exclusivity period expires, all “rights, title, license, and copyright” revert back to you.
This is mentioned in The Root’s contest announcement as well: “We’ll retain the rights to your story for six months, after which the rights revert back to you.” So while the license you’ve granted to your intellectual property is very expansive, it is also time-limited (note: the license does not include an explicit grant of copyright). Where publication is part of a prize, contest sponsors often require a temporary grant of rights to cover the judging period, so that entrants’ works will still be fully rights-available by the time the winner or winners are chosen. That’s acceptable as long as the grant expires as soon as the winner is announced (and, of course, as long as you’re okay with your rights being tied up for that period of time).
But wait–there’s also this:
- “After the Exclusivity Period, you grant to Sponsor and HBO an irrevocable, worldwide, perpetual, fully-paid-up and royalty-free, sub-licensable, transferable right and license to use the Entry as described herein.”
Say what? Didn’t the rules just state that all your rights revert back to you once the six-month exclusivity period is up? How can the contest sponsors be claiming those exact same rights–a claim that, don’t forget, is irrevocable and perpetual and applies to every single entry—at the exact same time as they’re apparently relinquishing the very same claim? The one should cancel out the other. If your rights have returned to you, the sponsors shouldn’t be claiming them. If the sponsors want a perpetual claim on your rights, why include reversion language at all?
I have no idea what’s really going on here. It’s always possible that the post-exclusivity rights claim is a careless mistake of wording: a bit of legalese that slipped past the proofreader and shouldn’t have been included. Or maybe the second rights claim is meant to be non-exclusive, and that word just got left out. If there is error, I hope HBO and The Root will promptly address it (The Root also needs to take a look at its contest announcement, which encourages writers to believe their rights revert after six months.)
At the very least, though, the rules for this contest currently include a major ambiguity that raises a number of questions and could potentially have serious consequences–most concerning of which is that, per the literal wording of the rules, simply entering the contest entails a perpetual and irrevocable–and apparently exclusive, since nothing states otherwise–grant of rights to your entry, whether you win or not.
Also worth noting: there’s nothing in the rules to guarantee that publication of the winning entry will carry the winner’s name, and the Dispute Resolution clause, which bars class action, also bars disputants from claiming anything other than “actual out-of-pocket expenses (i.e. costs associated with entering this Contest)”.
UPDATE 9/7/20: .The Root’s contest announcement states this, which is misleading, for the reasons outlined above:
Shouldn’t The Root, or its parent company, want to provide accurate information to would-be contestants? Apparently, not so much. I’ve left this comment on the announcement page twice, once on 9/4 and once on 9/5:
Neither comment has been approved. When I checked just now, they were both still “pending” (for comparison, several articles posted more recently than the contest announcement have numerous approved comments.) Nor has the misleading claim about rights been corrected.
I see. Thank you for the clarification. It's the bit that followed, stating the organisers could use/edit/adapt names and likenesses even in situations totally unrelated to the contest that mostly threw me for a loop. Seemed… waaay excessive.
That kind of language is very common–there's often something similar in publishing contracts as well. It's just intended to make it possible for the publisher or contest sponsor to use the author's name, likeness, and bio to publicize the contest, book, or whatever.
Am I the only one who is rather creeped out about the right grab extending to the use of the contestants' name, likeness and any other detail they provide (about themselves) to use them also for basically anything the organisers like? Or am I not reading things right?
Always believe a contract actually means what it says, and that the person who wrote the contract is willing to enforce everything you agreed to. Thanks yet again.
(deleted last because I only see goofs after hitting 'send'. Just more proof that some of us writers need a editor/keeper at all times … 😉 )
Your comments are still pending/hidden because they don't dare answer them. They can't do just the "six months" because it doesn't do what they want/need (pay one sucker once for lots of thereafter "forever free to us" ideas) and they can't admit the "forever free to us" because no one would send in any content.
Yup, writers beware of this con …
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Is that the same G/O Media that's been laying off content writers left and right, and basically destroyed Deadspin for no reason at all? Given that track record, I'm not sure they deserve the benefit of the doubt in this case. They have a large media conglomerate hungry for content and a distinct paucity of people providing it…
There's language in Clause 2 of the rules that addresses the similar content issue–the standard "similar or identical" language that are part of the waivers used by film agents and production companies–intended to protect the company against frivolous plagiarism lawsuits, rather than to enable it to grab people's rights.
On the content clause…a couple of problems. First, only the winner is getting published–so there's no reason for them to hold rights to any of the other entries "perpetually", and they should return them once the winner is announced. Second, whether it's bad wording or a proofing error or what, there's a clear contradiction between "rights revert after the six month exclusivity period" and "after the exclusivity period we still hold your rights." Both can't be true.
The perpetual use thing seems very similar to the standard content clause featured in the terms of service for social media, or any other service where you create content for posting on someone else's servers. As used in social media, it is (nominally) intended as a CYA to prevent them from getting sued for displaying the content that you create, or someone else's quotated response to the content you created, even if you terminate your use of the service down the road.
So it sounds to me like they just want the indisputable right to post the winning and/or runner-up entries on their website even after the contest is over. Though on the other hand, the Anonymous commenter's contention that it's also a CYA in case any subsequent episode of the show resembles the submitted stories does seem reasonable, too.
I wonder if some of this language is to cover their asses if an episode even remotely resembles an entry. To prove theft, the plaintiff has to prove the defendant had access to the stolen material. A contest would be proof. So if an episode did resemble a story and I'm willing to believe that people can come up with very similar ideas independent of one another, but rather than possibly have to prove that in court, maybe slide that rights grab in as a way to shut down any possible litigation.
One only needs to know two things, and a little about some contracting histories and practices, to see the true source:
HBO is a longtime unit of Warner (take a look at the copyright notice inside a recent printing of one of the later Harry Potter books);
which is now a unit of AT&T.
Let's just say that the contracting history of those organizations indicates a high probability that, just like Bob's Country Bunker, we've got both kinds here: incompetance/carelessness AND ill intent/hidden agendas.
As you say, badly worded. But there may be a method behind the doublespeak. Things like "turning an entry into an episode" and then airing it will take time and may run past that six month limit. And let's not forget that if they did use one for an episode they wouldn't be able to air that episode after that six months without paying the writer – unless the forever part of the contract was in force.
So maybe the six months is to go over what they get and see what they can use (oh yeah, and pick a so-called 'winner'), and the forever bit is to not to ever have to pay for anything else they also liked/wanted.
A rather poor offering for the writer since there's no money (except a one-time payment for the winner), and no offer of even having their name on it (so you dang sure can't call it exposure!)
Good luck to those that dare the waters. 😉