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:
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.