Dear The Toast and The Butter: Please Fix Your Rights Grab (UPDATE: They Did)

(UPDATE: The Toast and The Butter are indeed revamping their contracts; details at the bottom of the original entry.)

Writer Beware has posted a heads up for writers with regard to Web sites The Toast and The Butter, and the rights they are asking from contributors. Specifically, WB reports that contributors to the sites must hand over copyright (and, where applicable, moral rights). The specific freelance contractual clause in question, according to WB (relevant bits bolded by them):

The Contributor hereby acknowledges and agrees that the Work, including any drawings, images, sounds, video recordings, or other data embedded in the work and including adaptations or derivative works based on the Work is the sole and exclusive property of the Toast and the Toast has all rights under existing United States’ copyright law and all reproduction and republication rights. In the event that any portion of the Work is not copyrightable, The Contributor hereby irrevocably assigns any and all ownership of the Work’s intellectual property rights, including but not limited to: patents, trademarks, design rights, database rights, trade secrets, moral rights, and other proprietary rights and ll rights of an equivalent nature anywhere in the world to the Toast. The Contributor further acknowledges and agrees that the rights being granted to the Toast include the right to own and register all copyrights in the Work. The Contributor hereby irrevocably assigns all the above described rights herein to the Toast and agrees to execute such additional documents as may be requested by the Toast to evidence the Toast’s ownership of said rights in the Work. The Contributor further hereby waives any “moral rights” claims she may have with respect to the Work.

WB also notes that this transfer of copyright is not noted in the submission guidelines on the site. I checked, and this seems correct.

What do you get for this transfer of copyright and moral rights? According to Writer Beware:

$50.

So, yeah, no.

Note well I have been a huge, huge fan on The Toast and specifically the work of Mallory Ortberg, who is site editor, and who may in fact be one of the funniest humans alive on the planet at the moment. I’m also a very big fan of Roxane Gay, who recently signed on to edit The Toast’s sister site, The Butter. As quality reads online, I love them.

But no matter how much I like and admire Ortberg or Gay, or their writing, the sites’ attempting to grab copyright and every other possible right for $50 is a whole lot of egregious bullshit. Also egregious bullshit: The response of Nick Pavich, publisher of The Toast and The Butter, when questioned about the policy (see the above included image, which notes his response). It’s basically saying the publisher doesn’t actually give a shit about writers, which is not, generally, an excellent way to convince people to write for you, and which makes Ortberg and Gay’s positions more difficult.

I’ll be clear: I would not write for The Toast or The Butter for these terms, no way, no how. I’ve done work for hire (the formal term for work for which one does not retain copyright), but it sure as hell wasn’t for fifty bucks — if a company is requiring me to relinquish all rights and potential for future earning from my work, I better be adequately compensated up front, and fifty bucks doesn’t even come close to matching my definition of “adequately compensated” in that case.

Nor could I suggest other people write for them under those contractual conditions, especially as Mr. Pavich’s response above suggests he’s not especially interested in negotiation on that point. That’s his right, if that’s the case, but I’m not sure why I would want to write for someone who has that little regard for the economic concerns of the folks who populate his site with the stuff people want to read. Contempt isn’t a good look.

The good news here is that this is a relatively simple fix. The Toast and The Butter can easily change the language of their contract to avoid attempting to claim copyright and moral rights (the latter of which, as I understand it, may not actually even be possible for them to take in some jurisdictions), and instead work out a license commensurate to what $50 is actually worth, which (in my not entirely uninformed opinion, having been on online editor) would be first publication, a window of exclusivity and the right to non-exclusive archiving on their site. They could also reserve non-exclusive print rights (or compilations, etc) contingent on additional payment. That seems reasonable to me.

This is also a reminder that writers should always always always check their contracts and also understand them, and the market. Bluntly put: Selling your copyright is not a standard practice, and certainly not for five lousy Hamiltons. So what The Toast and The Butter are doing here is a flat-out rights grab. If you didn’t know it, you know it now. Again: I sure as hell wouldn’t take this deal, and I don’t know why anyone else would want to either.

I hope this gets fixed soon. I like reading The Toast and The Butter. But I would find them more difficult to read, if I don’t believe they treat their writers with respect. Demanding copyrights for next to nothing is not what respect looks like to me.

Update, 1:05pm — Two tweets of interest from The Butter editor Roxane Gay:

Update: 2pm: Nick Pavich apologizes for his tweets on the issue and promises contractual fixes. I’m not really sold on his excuses for how they did the contracts previously, but if they’re fixing them now, all the better.

Update: 2:15pm: More on the changing contracts, from The Toast editor Mallory Ortberg: “[W]e’re changing our contracts to ask only for First North American Rights (so rights revert to the writer after 6 months), as well as online serial rights so that we can retain the work on our sites in perpetuity. We’re also writing into the contract the promise that we will revert rights in the case of a book deal, so that what we’ve always done in practice will be spelled out in writing.”

The only I note I would add to the above is that I would want it to be clearer if the online serial rights were exclusive or non-exclusive; this could be an issue if the publication which bought something for reprint has an online component.

But generally, this is a substantial improvement.

So: I can keep reading The Toast and The Butter! Hooray for me! And also, and rather more importantly, hooray for the writers of the site. And thanks to the Toast/Butter editorial staff for listening and making changes.

82 thoughts on “Dear The Toast and The Butter: Please Fix Your Rights Grab (UPDATE: They Did)

  1. Good to know! I predict a rapid change of policy over there once this becomes more generally known.

  2. This is extremely timely for me, as I was just handed a contract yesterday that was this bad (not from The Toast) and I wouldn’t even get paid except with a comp copy of the book. I’d been wondering if I was overreacting by refusing to sign, but your opinion carries a lot of weight with me, so now this is officially my hill to die on.

    Also, fair warning… I know someone who sold The Toast a piece and didn’t even actually get paid. It’s been months now.

  3. The snarky rejoinder doesn’t even make sense: how can you “keep your precious words” AND “write for us”???

    He meant to say “give us your precious words without collecting a fee”. And if that’s the level of their editing, I’m unimpressed. “Just give us your work” would be even pithier.

  4. The condescension dripping off Pavitch’s response would be more than enough to steer me well clear of submitting anything to the site, even with sane contract terms. (Hell, it’s nearly convinced me to steer well clear of the site as a reader.) The impression it gives off is that writers are held in such low esteem by the publisher that the $50 probably strikes them as being an awfully generous offer.

  5. I once was asked to sign a contract like this by a web site operated by a big-city paper. I’d already written for them w/o a contract, but this was to be the deal from here on out. I refused to sign, and got into a knock-down drag-out with the new editor, who was probably all of 23. He called me unprofessional.

    When I told my friend the music lawyer, he said, “Good! Don’t EVER sign a work-for-hire contract unless you’re working on a movie.”

  6. Eric RoM: The idea is that, if you write for them but don’t take a fee*, you also keep copyright. They aren’t buying your “precious words”, they’re buying the rights. And while $50 may be enough for whatever article you write, it sure as heck isn’t enough for the rights…

    *: “It’s exposure!”

  7. I read his twitterstream and just want to say, what an ass. He also deleted the tweet mentioned above, as far as I can see.

    I was blissfully unaware of either site, if the owners attitude is any reflection of the site contents, I’m really happy about that.

  8. I’ll note here that Nick Pavich is an attorney so, presumably, knows his way around a contract or two. This appalling contractual language is likely not due to ignorance.

  9. The comment isn’t deleted, and his followup (not an @-reply) is even worse: “You’ll always have your dream journal, kittens. We can’t take that away from you.”

    And now Roxanne Gay is in the awkward position of telling people he’s not really like that… gosh. Maybe he could make things easier for her and apologize?

  10. I see from the piece in the New York Observer (linked from the Writer Beware piece) that they’re described as “ladyblogging” sites.

    Women’s work pays less, as usual?

  11. DataGoddess: Not to take his side, but it’s anything but uncommon for people to say things that aren’t representative of who they are. People get tired, angry, or frustrated; they misinterpret things; and they throw out things without thinking about them.

  12. Jessy — it gets better when you go to his timeline and see him talking about being a “buffer” for her. I’m not sure he understands what some words mean.

  13. Technical correction to a tangent in Our Gracious Host’s justified screed:

    “I’ve done work for hire (the formal term for work for which one does not retain copyright)…”

    Umm, no. “Work [made] for hire” is either (a) the work of an employee done within the scope of employment, or (b) specifically commissioned work falling in one of nine defined categories (see 17 U.S.C. § 101*). As it happens, The Toast and The Butter appear to fall inside one of those categories… but the WFH doctrine is entirely irrelevant, as a work that exists before initial contact is not “commissioned.” Instead, I suspect that Our Gracious Host merely transferred his copyright in certain works to the publisher. And that’s certainly possible… but it’s not work for hire.

    We now return you to your regularly-scheduled outrage.

    * Aside: Note that “book-length work of fiction” cannot be forced into any of those categories. That’s some food for thought concerning media fiction… just sayin’.

  14. Jaws — I suspect on the contrary that Mr Scalzi knew exactly what he was talking about there. He worked as a writer for over a decade before his first novel was published, writing website content, “dummies” style manuals, and other commissioned work which would definitely fall into the work-for-hire category.

  15. Andrew — There’s a big difference between what publishers often call “work for hire” (and authors blithely accept) and the correctness of that characterization. And that’s really my point: Our Gracious Host did indeed do work for hire… as an employee at AOL; freelance works — not so much, even if that’s what the contract called them. Commissioning is an “and” precondition; unless the “‘dummies’ style manuals” qualify as textbooks (possible, but unlikely), they’re outside the definition of WFH for anyone except an employee.

  16. Would just like to add re: Pavcih that I wrote two pieces for the site and was never paid for either, despite signed contracts and repeated emails to Pavich that he never replied to. I guess I do get to keep my “precious words” now, though, so there’s that.

  17. Jaws: I guess you consider The Toast/Butter as a compilation, as that’s the only one of the nine categories that makes sense to me? Regardless, it’s true that, generally, the only circumstances freelance writers do not retain copyright is if they enter a contract for a work-for-hire commission. But for the most part, you can also negotiate your intellectual rights away with abandon. What Pavlich is doing is pretty scummy, but legal.

  18. A dummies book would surely be ” a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities”.?

  19. I would pack up and leave if I worked for them after that tweet. I wrote for a smallish comedy website a few years back and as soon as myself and the other freelance columnist for them learned that our editor not only made what we did for 10 times the work, but was told if he had a problem with it “there’s the door”, we walked with him. It was a nice regular paying gig with almost complete creative freedom, but if you don’t value your staff, you don’t get to profit from the talent they brought in.

    Conversely, a much larger comedy site I write for to this day pays handsomely and supports freelancers heavily. Many of us have become full time staff members, had our content in books and even free promotion for our work on the site. They are also immensely successful as a result.

    Why do so many publishers act like they’re doing us a favor by existing? That’s like telling a cow it should be honored we allow it to be steak because it got all that grass for nothing.

  20. It’s such a gosh-darned damn shame that there’s nothing else on the entire Internet besides the Toast and the Butter that’s worth reading instead.

    (Do I need to add a “/sarcasm” here?)

  21. I am a huge fan of The Toast, and this is deeply disappointing to hear. I was linked to this piece from the comments section of The Toast’s link round-up today so I’m hoping they address it directly and soon. If not, I may have to give up my current favourite internet site.

  22. This language is not a “work made for hire” contract. Saying that the author “acknowledges and agrees” that The Toast owns all copyright doesn’t magically make their contribution a “work made for hire” if it doesn’t fit the definition in the Copyright Act. Although The Toast probably qualifies as a collective work, submitted contributions are not automatically going to be “works made for hire,” because they were not “specially ordered or commissioned” for that collective work. (This may explain why the submission guidelines say they “prefer proposals to finished pieces” – they may be able to argue that they “specially commissioned” the finished piece when they accepted the proposal.)

    In addition, the parties must “expressly agree” in writing “that the work shall be considered a work made for hire.” This is one of those situations where there actually is “magic language” – if you don’t use the words “work made for hire” (or :work for hire”) then it isn’t. The contract language cited here doesn’t say that.

    This contract language is also ludicrous when it says “In the event that any portion of the Work is not copyrightable, The Contributor hereby irrevocably assigns….” That’s not how it works. If it’s not copyrightable, then there’s no copyright, and it’s highly unlikely that any of the other rights listed as being assigned will apply to a submitted piece of written work. What I think they may have been trying to say – which I have seen elsewhere – that to the extent the contribution doesn’t qualify as a “work made for hire,” the author is assigning all rights (copyright) to The Toast. The big difference is that if something is a “work made for hire,” the employer/hiring party is considered to be the author of the work; whereas someone who owns the work by assignment is not the author. (This is primarily relevant in 35 years, when the Copyright Act says that the author or his/her heirs have five years in which he/she/they can terminate the assignment and have the copyright revert to the author or the author’s estate. If something is a “work made for hire,” then there’s no reversion.)

    I’m not commenting on the business terms. There’s nothing inherently wrong with The Toast requiring an assignment of copyright in submissions, or in commissioning pieces as “works made for hire”; if the payment is inadequate, the market should take care of that, and I hope the publicity helps that to happen. But that contract language.

    Disclaimer: I am a lawyer, but I am not *your* lawyer. Anybody who thinks my comments here are actual legal advice probably needs a different kind of professional help. But if you have real-world copyright concerns about your real-world situation, you should find and pay a real-world lawyer to help you.

  23. That contract reads like a common IT employment agreement. The wording is nearly identical. Company owns everything I do. However, its for a w-2 employee situation. I get a pay check every 2 weeks and benefits. For $50? Damn. The contract is practically boilerplate for IT employment agreements. They likely got it off a web page. Its really not that bad if your taking an employee job, but not for $50. I think they are slipping it in because they think people don’t know better.

    I have signed these things knowing full well that if I have a brilliant idea I am not sharing it with the company and I will keep it for myself. I would let them sue me later. If the idea is so brilliant I’ll be able to afford lawyers and I’m mean. Unfortunately I’m also stupid so I have not had any sufficiently brilliant ideas yet.

    I have walked away from jobs and taken less money because I didn’t like the agreement. Last year this time I passed on a job at $40,000/year more than the one I took because I did not like the contract terms. It had some vague contract terms stating I could not work for any competitors (without naming them so they could decide). It was a senior level software architect position so you could make the claim I could critical harm their business. Bite me.
    They could choose not to hire me or fire me after a week and it would be enforceable. I got them to change it since I said I won’t sign it, but I didn’t like the attitude from the HR person I talked to so I took less money somewhere elsewhere. There were other reasons why I didn’t want the job. Namely, I liked the job I took better and long term its better for my career, so I think the skills I am getting here will make up for the temporary loss of income. However, the #1 reason was the crap contract. That was a non-starter.

    .

  24. Thanks for giving this a higher level of awareness. I enjoy reading the Toast and have started reading the Butter, but I am appalled at Pavich’s response. Truly unprofessional.

  25. Huh. I got paid $50 for a piece that was published by xoJane last year. First time I got paid for writing. Didn’t read the contract that closely. Now I kinda want to go back and look at it.

  26. Bearpaw:

    I was one voice among several. Writer Beware and Victoria Strauss, I think, get the bulk of the credit here. And I think it’s also true that Nick Mamatas did some heavy lifting.

  27. Pavich’s deleted “dream journal/kittens” comment is startlingly misogynist, given the brand identity The Toast (and presumably Butter) were cultivating as safe spaces. If that’s where you go to be insulting when you’re too tired/drunk/busy/whatever to think your actions through, that’s fairly telling about your unfiltered nature. I have loved The Toast and was really excited about Butter, but I guess I was naive to assume that everyone’s mouth was where the money is.

  28. I’m seriously old school(old world, in fact) on a few things and to see Pavich’s flippant tweet would put me off in perpetuum. I could go on, but no need for that. Well done pointing this out.

  29. I take it your “work-for-hire” rates are such that $50 buys just the one word? Possibly two? (“No!” or “Hell, No!”).

    I agree with other commenters. I’d also add that given Mr Pavlich’s flippant attitude, I’d be worried he was only going to pay the $50 in local currency (the Australian dollar is currently dropping like a rock) rather than in US dollars. So I’ll keep my precious words to my Dreamwidth blog instead.

  30. John, thanks for always looking out for writers. What I’m about to say is in no way directed at you, but many of the commenters on this thread.

    To the anonymous commenter who said they never were paid by Nick, here’s my two cents (not worth much). I’d email Mallory or Nicole (Callahan). Other writers have said the same thing has happened, but that when they emailed Nick they were paid. Maybe cut Nick out of the loop and go straight to Nicole Callahan. Today would probably be a good time to do it, now that they’re looking at Nick with new eyes (I know I would be. I wouldn’t be sad to see the site get a new publisher).

    To the male commenters on this thread who have thrown such blanket hate on the Toast (let it burn, etc.), I say shame on you. That site has meant a lot to many of us who don’t always see our experiences reflected elsewhere, whereas as white men your experience is the default. I don’t doubt that you can’t imagine how important that site has become because you don’t need it. You are nearly always represented in media and writing. Maybe cut down the sarcasm and hate a notch? You make it sound like you’ve personally been hurt by The Toast’s shitty [former] contract, but I highly doubt you have. The Toast is known for actively seeking out voices who are NOT white cis het male. Or is that your actual problem with The Toast?

    Anyways, Nick said some assholish things and may be an asshat. The contract sucked and they don’t pay much. But they’ve dealt with the situation far better than any other writing-related business I’ve seen. That counts for a lot in my book.

  31. I love reading Toast and Butter, and I’m glad they fixed their contract.

    Pavich’s tweets were insulting, but a lot of writers can’t afford to cut off an editor for saying stupid things on Twitter, so I’m glad Writer Beware does what they do.

  32. No better way to F**k things up than to get a lawyer involved. They ask for your first born child.

    I had a job once where a few years into the job they decided they wanted the rights to all your ideas for free. Even from before you started working there and stuff totally unrelated to the job. I said no, which pissed off my supervisor (who had give up his rights). I explained my position the the IP lawyer they had brought in to try and intimidate me. The lawyer nearly winked at me, but smiled and accepted my position. Which was, you only get what you pay for.

  33. Thank you again, John Scalzi, Writer Beware, Victoria Strauss, and Nick Mamatas. I shall not opine on “work for hire”, as it is my son who id an Intellectual Property Attorney.
    I shall say, from experience, that I have had offers to buy short stories, which I’d completed and submitted, for money, which I declined as they demanded all rights. I said “Hell no!” not because I disdained the money, but in solidarity with other professional authors. One must draw a line somewhere.

  34. This is like when the high school jock leans over during a chemistry exam and whispers, “Give me all your answers. I’ll let you stand next to my Mustand GT for fifteen seconds.”

  35. Crystal: I have been known to write comments while tired/stressed/drunk. I don’t think I’ve ever written anything under those conditions as snotty and condescending as that Pavich tweet. (And if I did, my followup when sober and/or a bit more calm and rested would be “Please accept my apology for being an asshole”. In those words, not “I shouldn’t have been allowed near a phone.” Drawing from The Well – You Own Your Own Words.)

  36. I’ve never heard of either of these sites, but the situation is more than familiar. An operation trying to exploit a female audience run by a guy who regards women as insects. Guy and Ortberg are amazing, but they don’t own the operation, do they. And with contributing writers saying that they weren’t paid, that pretty much tells you all you need to know. Even if the contract is changed, this guy is a litigious, manipulative schemer and pretty open about it. It’s unlikely new terms will be honored; this guy is not on the ball as to how to write contract terms. The attempt to grab copyright terms looks like he tried to crib from film contracts, poorly. If he owns the sites, I don’t know that it will get better. If he’s just the publisher, might want to wait till he leaves, brilliant editors hired notwithstanding.

    Most of the time when you are publishing fiction through a publication/publisher, you are giving the publication not your story but the license to use your story in their publication under agreed terms. The story is yours, but you’ll let the publication print a version of it with both you and the publication benefiting from that one printing. When you give up the ownership of the story, you are giving up more than just how that story can be used in various forms of publication over time. You’re giving up film and dramatic rights. You’re giving up reprint rights in publications all over the world. You’re giving up the rights to turn the materials of the story into a game or have a piece of merchandise from that story.

    All of those rights may not get exploited, but the possibility that they might is why publications want either a license right to be involved or broker that exploitation, or full ownership of those rights. Nobody knows what’s going to be valuable later, no matter how lacking in value you think your work likely is. That doesn’t mean that you might never do a work for hire job, where you’re paid to essentially be the ghost writer or collaborator for the publication’s project. But work for hire usually doesn’t involve your original compositions. It usually involves working on somebody else’s property, like Star Wars tie-in novels.

    And again, you can be giving up more than the story itself — you can be giving up your name. When romance writers used to have the bigger wholesale market and not have to tour to sell their books, they would often write under various pseudonyms. (And some of them still do this.) But the old contracts gave the romance publishers ownership of the pseudonyms. If a successful author decided to stop working with a publisher or using a pseudonym, the publisher could hire another writer and give that new person the pseudonym the first author built, with the first author getting nothing. Romance authors had to go to court to change it.

    So you’d be not only giving them the story, but these sites could conceivably bring in another writer to do a whole bunch of sequels of whatever sort they like, maybe even under your name, but certainly your name stamped on the first one you wrote. Any interesting new media developments that come into the market, they get to exploit it, not you. And if you decided to do a spin off novel based on that story, or a film script? You couldn’t and any attempt, they’d own the property.

    Non-fiction feature writing, writers do sometime write stuff assigned as a work for hire. But non-fiction writing has even more chance of being exploited into a book or other property than short fiction. It’s seldom worth giving up your rights to a property.

  37. megan said: “The contract sucked and they don’t pay much. But they’ve dealt with the situation far better than any other writing-related business I’ve seen.”

    You’re leaving out all the writing related businesses who’ve been intelligent enough to not get into that situation in the first place, much less stick their head so far up their ass about being called on it they can tongue their tonsils from the other side.

  38. Kat Goodwin:

    As I understand it, Ortberg, Pavich and a third partner whose name escapes me at the moment, but who is a woman and an editor of the site, all have equal ownership. So your hypothesis regarding ownership is off in this particular case.

    I’m willing to give them some benefit of the doubt in the idea that, if they were not experts on handling rights, they might have thought what they were doing was reasonable. It doesn’t change that it was in fact pretty bad, but the fact they were willing to make a change once it was pointed out works for me.

    I tend to be pragmatic on these things – if the new contracts work, then that’s the thing that’s important.

  39. It’s quite possible the lasting damage from this to The Toast won’t be from the rights or payment issues, but from the whole “dream journal/kittens” thing. A lot of people remember an insult long after other kinds of controversies have faded from memory.

  40. I have been known to write comments while tired/stressed/drunk. I don’t think I’ve ever written anything under those conditions as snotty and condescending as that Pavich tweet. (And if I did, my followup when sober and/or a bit more calm and rested would be “Please accept my apology for being an asshole”. In those words, not “I shouldn’t have been allowed near a phone.” Drawing from The Well – You Own Your Own Words.)

    I’m with Don. It’s certainly possible for an apology to take the form of “I was tired and angry, and I let that get the better of me, and I’m sorry” and be sincere, but generally there needs to be more acknowledgement that being tired and angry is no excuse for treating people like shit. NP’s state of mind when he tweeted so appallingly may be an explanation, but it should never be held up as an excuse.

    I mean, I won’t claim that I’ve never behaved as badly when under the influence of brain chemistry–but I hope no one tried to defend me with “That’s not who she really is.” That was absolutely who I really was: someone who treated people like shit when she was stressed out. It’s not like some pod person was impersonating me. It was me all along–and I didn’t want to be that person. So I took responsibility for that behavior and tried to improve, because treating other people like real human beings even when we’re feeling less than fresh is a skill that adults are expected to acquire. And when I hit my limits and have no reserves for being anything other than a raging ball of hate, I hope to hell I’ve learned how to be my own damn keeper and not call anyone up, initiate meaningful conversations, or hit the POST button until I regain the necessary self-control to conduct those conversations appropriately.

    (I’m not saying there are no situations where “raging ball of hate” isn’t appropriate–but it needs to be deliberately chosen as a tactic, not a lazy default behavior when one’s feeling under the weather.)

    I wouldn’t write NP off as a Horrible Bad No Good Person, but I sure wouldn’t want to be in his company when he’s feeling less than his 100% best. And much as I love The Toast/The Butter and the rest of the sites’ editorial staff, I’d be hesitant to do business with them while he’s still active there.

  41. Thanks for posting, both the original heads-up and the updates. It’s good to see the pros boosting the signal on situations like this, and good that it seems to be on its way to resolved.

    But…do you think next time you could post a clue to Pavich’s comments (or even, if they’re very short, a transcript) for us visually impaired folks who can’t get them from the image? Or perhaps a link to where we might find them? I find your blog very accessible 99% of the time (probably more) and I really appreciate it, but it makes that infinitesimal bit I can’t get stand out that much more.

  42. The New York Times lost a case some years back about whether their freelancer contracts included the rights for those essays to be included in full-text databases like Lexis/Nexis. I assume that’s what “database rights” refer to, though how that is different from other subsequent republication rights is beyond me.

  43. Scalzi: I said if he was the owner, which he is one of; I didn’t assume. And you presented Ortberg as the site editor, not the co-owner. It didn’t sound like Pavich was much consulting her when he went off at questions about his horrible contract terms.

    I’m willing to give people the benefit of a doubt too, and understand the pragmatism part. But I’ve negotiated a lot of pub contracts from both ends, including first serial rights. And that language was very deliberate and exceedingly elaborate. And the reaction he had when it was questioned was to claim that the rights — the writers’ work — wasn’t worth anything. But if it isn’t worth anything, why does he want the copyright ownership? So right there, you have one owner whose business strategy is shuck and jive.

    Pragmatically, you can demand and may get changes to a contract to get around that shuck and jive. (They do it in Hollywood all the time.) But that’s not necessarily going to protect you when they try to do an end-run around those new contract terms, like exploit rights, not pay you and say it’s part of the license grant. Given that at least one author who gave up copyright didn’t get paid, and that they don’t pay a ton to begin with, that makes it shifty at least. So I’d say that Ms. Ortberg has more than contract problems being in business with Pavich. There is a three strikes situation — rights grab, non-payment, spewing bullshit when confronted on rights grab.

    At the least, hopefully, Ortberg and the other owner will keep a closer look over what Pavich is doing in contracts and accounts.

  44. I’m still stuck on the thought of $50. $50? Really? Why not just not pay anything? It’s hard to believe that folks are willing to do the job for $50 who wouldn’t be equally willing to do it for nothing, and yet economic theory suggests that there must be supply and demand at that price.

  45. Nicoleandmaggie, IMO, the $50 does two things:

    – makes the blog a paying venue, which gives it higher status than non-paying venues, attracts a higher quality of writers and sponsors, and brings in more readers.

    – puts $50 in the writer’s pocket. Inflation means it doesn’t go as far as it used to, but it can still be exchanged for goods and services!

  46. @Ellen– $50 for the kind of posts they’re expecting shouldn’t get quality and shouldn’t confer status. That’s a pittance. I know of sites online that pay 3-4x that, and that’s still low (according to the Scalzi metric). You would have to write 20 of those to even just get $1000.

  47. It is a pittance, and maybe this isn’t an issue for a publication of their caliber, but many beginning writers tend to go, “YAY! I’M GETTING PUBLISHED!” Happy to have a writing credit to put on future query letters, and the cash is just a bonus. That’s why sites like Writers Beware exist.

    (Heck, I put many writing and editing hours into my first piece to be published, a personal essay for an anthology, and I haven’t even SEEN the contract yet. I hear we’ll start discussing that sort of thing after Christmas.)

  48. Incidentally, would it be possible to add subscription to post comments, instead of just subscription to all new posts on the site? The latter isn’t very useful, that’s why I have a feed reader. But when I write a comment I like a reminder to check for replies.

  49. @nicoleandmaggie, I know of venues that pay more, and I also know of venues that pay less.

    The John Scalzis of the world have agents to help them protect themselves. And certainly, John shouldn’t clear his busy schedule to write for The Toast. But I can imagine other writers – let’s hypothetically say, a SAHP trying to pick up a little money to cover a couple bills, or a student tring to plug the holes in their budget – for whom $50 is meaningful, in addition to those for whom the money represents a professional sale. And I’m glad Writer Beware is acting on their behalf, because many of them can’t afford to shake the boat over contracts.

  50. Ellen, et al.:

    The $50 isn’t great but depending on the length of the piece is not horrible either. The issue isn’t the payment per se, but what was being asked for in return for that payment. The new agreement is rather more in line with what I, for one, that sort of money should pay for.

  51. It is centered on educating your self and making
    positive changes. Dinner – Rainbow salad with 60% shredded vegetables,
    30% chopped fruits and 10% dressing (mix virgin coconut oil
    with flaxseed oil as dressing). Fairweather said the TRX has helped Beatrice,
    26, build lean muscles while burning fat.

  52. @Cally,

    Thank you! I really appreciate it. Glad Pavich later apologized for that and they’ve changed the contract.

  53. I certainly wouldn’t. That mofo Nick Denton still owes me twenty bucks for something I wrote three years ago. I could say I’m upset about the principle, but not the money — but honestly it’s both. I could use an extra Hamilton. Kitty antibiotics aren’t cheap.

    Moral: Do not trust online publishers named Nick?

  54. “The New York Times lost a case some years back about whether their freelancer contracts included the rights for those essays to be included in full-text databases like Lexis/Nexis.”

    NEW YORK TIMES CO., INC., et al. v. TASINI et al.

    certiorari to the united states court of appeals for the second circuit

    No. 00-201. Argued March 28, 2001–Decided June 25, 2001

    Respondent freelance authors (Authors) wrote articles (Articles) for newspapers and a magazine published by petitioners New York Times Company (Times), Newsday, Inc. (Newsday), and Time, Inc. (Time). The Times, Newsday, and Time (Print Publishers) engaged the Authors as independent contractors under contracts that in no instance secured an Author’s consent to placement of an Article in an electronic database. The Print Publishers each licensed rights to copy and sell articles to petitioner LEXIS/NEXIS, owner and operator of NEXIS. NEXIS is a computerized database containing articles in text-only format from hundreds of periodicals spanning many years. Subscribers access NEXIS through a computer, may search for articles using criteria such as author and subject, and may view, print, or download each article yielded by the search. An article’s display identifies its original print publication, date, section, initial page number, title, and author, but each article appears in isolation–without visible link to other stories originally published in the same periodical edition. NEXIS does not reproduce the print publication’s formatting features such as headline size and page placement. The Times also has licensing agreements with petitioner University Microfilms International (UMI), authorizing reproduction of Times materials on two CD-ROM products. One, the New York Times OnDisc (NYTO), is a text-only database containing Times articles presented in essentially the same way they appear in LEXIS/NEXIS. The other, General Periodicals OnDisc (GPO), is an image-based system that reproduces the Times’ Sunday Book Review and Magazine exactly as they appeared on the printed pages, complete with photographs, captions, advertisements, and other surrounding materials. The two CD-ROM products are searchable in much the same way as LEXIS/NEXIS; in both, articles retrieved by users provide no links to other articles appearing in the original print publications.

    The Authors filed this suit, alleging that their copyrights were infringed when, as permitted and facilitated by the Print Publishers, LEXIS/NEXIS and UMI (Electronic Publishers) placed the Articles in NEXIS, NYTO, and GPO (Databases). The Authors sought declaratory and injunctive relief, and damages. In response to the Authors’ complaint, the Print and Electronic Publishers raised the privilege accorded collective work copyright owners by §201(c) of the Copyright Act. That provision, pivotal in this case, reads: “Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.” The District Court granted the Publishers summary judgment, holding, inter alia, that the Databases reproduced and distributed the Authors’ works, in §201(c)’s words, “as part of … [a] revision of that collective work” to which the Authors had first contributed. The Second Circuit reversed, granting the Authors summary judgment on the ground that the Databases were not among the collective works covered by §201(c), and specifically, were not “revisions” of the periodicals in which the Articles first appeared….

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