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December 16, 2014

Rights Grab: Transferring Copyright

Posted by Victoria Strauss for Writer Beware

EDITED 12/17/14 TO ADD: The Toast has announced that it will change its contract terms. See the end of this post.

The Toast is an online literary magazine that publishes stories, articles, artwork, reviews, and more. Launched in mid-2013, it's associated with some respected names and apparently draws a sizeable audience.

It also offers, in Writer Beware's opinion, a very problematic agreement for freelancers.

Contributors to The Toast are paid a flat, one-time fee of $50 on publication. No further compensation is due, even if The Toast re-publishes the contribution. The Toast also reserves the right to edit at will.

These aren't ideal provisions, but they're not uncommon. What is uncommon: contributors must hand over copyright and waive all moral rights (including the right of attribution). Here's the relevant language (my bolding):
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.
Nowhere on The Toast's website, or in its submission guidelines, is the copyright transfer mentioned.

I'm guessing that you've probably never heard of The Toast (I hadn't), or considered submitting there, so you may be thinking that this post has no relevance to you. But it does, in a broader sense--because outside of the academic world, copyright transfer demands are not the norm for magazines and journals, online or off. If you encounter them, you should be wary.

Be sure to read every word of any contract or agreement you're offered, and make certain you understand them. If you have any doubt about the meaning of terms and clauses, don't make assumptions--seek advice. The language of copyright transfer is not always completely clear, or, as with the clause above, it may be buried in a welter of verbiage.

More on copyright transfer, from this blog:

The difference between rights and copyright

Copyright transfer in HBO's Game of Thrones Compendium 

Copyright transfer language buried in a website's Terms of Use

Copyright transfer as part of writing competition entry

An example of how vague and opaque copyright transfer language can be

Why a "temporary" copyright transfer is no better than a permanent one 

EDITED TO ADD: As I mentioned above, I'd never heard of The Toast before, so I was not aware that it is (at least, based on the attention this post has received) a Pretty Big Deal in the literary world. If I'd known this, I would have reached out to its publisher, Nicholas Pavich, for comment. I didn't--but others have. If there's a response, I'll amend this post to reflect it.

EDITED TO ADD: In a blog post today from co-founder Mallory Ortberg, The Toast has announced that it is changing its contract terms for writers (and hopefully artists as well, though that's not mentioned):
So, with that said, we’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.
I think it's great that, despite the rights grab in its contract, The Toast has in practice reverted rights upon request. However, in that case, why have a rights grab at all?

In any event, "in practice" is a very nebulous concept when contract language says something different. It's far better--and safer--for practice and contract language to match. Kudos to The Toast for responding to criticism and taking that step.

UPDATE, 6/8/15: Publisher Nicholas Pavich has left The Toast, "apparently...over some vague but certainly bad blood between him and its co-founders, Mallory Ortberg and Nicole Cliffe," according to Jezebel.


Andrew Kozma said...

The Toast is actually becoming a pretty big e-mag, sort of like McSweeney's but with more political commentary involved in their humor.

I'm really disappointed to hear this about the rights grab (and not only because I'd considered writing for them).

Margaret said...

Disgraceful. I won't be reading/submitting to The Toast again.

Dennis Latham said...

Just another way to rip off writers. What happened to one time rights? Now if they were offering 5000 for all rights I could see it, but they are trying to steal written work.

Jennifer R. Povey said...

I hadn't heard of them. Thanks for the warning (Although I'm good at reading contracts and would have spotted it, now I know not to waste my time).

Peter said...

This isn't a defense of the practice. But one common comment has been that many sites, (avclub for instance) do this and why is the Toast being focused on. Are you going to write up more sites?

F.J. Bergmann said...

I've been delighted to have poems published by The Toast, which I love, twice now. Coincidentally, I was recently solicited for a reprint of one of the poems appearing there. I also hoped to place a chapbook that would include the other 3 poems with a publisher, and I am also hoping that one of the poems may be nominated for an award that would require reprinting. When I asked, The Toast immediately responded, giving permission to all requested republication without charge. And they are one of the best-paying markets for poetry out there.

Karen said...
This comment has been removed by the author.
Karen said...

I get it, but... what are we really talking about here? Contractual language of this sort is unlikely enforceable by law anyway. And these companies know it (along with the entire legal industry). So why sweat it?

John Scalzi said...

The Toast is changing its contracts:

Victoria Strauss said...


For the purposes of my post, I was treating The Toast as a literary magazine, based on what I saw when I explored its website (as I said, I wasn't familiar with The Toast, so this could have been the wrong assumption). Among literary magazines and journals, requiring a copyright transfer isn't common.

As to writing up more sites--I've written critical articles about a number of websites and publications that require copyright transfer. See the links toward the bottom of my post.

Victoria Strauss said...


I don't know if the contract language is unenforceable (any lawyers care to comment)? But avoiding legal action seems like a good idea, where possible, so unless an author is OK with handing over his/her copyright, s/he probably shouldn't sign a contract that requires a copyright transfer.

The contract is the ultimate bottom line of any author-publisher relationship. Never assume that any part of it won't apply to you at some point, or ignore a problematic clause because the publisher tells you that their actual practice is different.

lithakate said...

Are they kidding? Who in their right mind would agree to that. The Toast must be completely insane :-o

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