April 12, 2022

Emma Gray and Claire Fallon were two rare millennial journalists who had worked for the same digital media organization for a decade.

By 2021, Gray was a senior women’s reporter and Fallon was a culture writer, both at HuffPost. Together, they hosted a successful “Bachelor” recap podcast called “Here to Make Friends.”

They enjoyed their jobs and had no plans to become “Substack people,” as many of their peers had done. But in early 2021, less than a month after BuzzFeed acquired HuffPost, it laid off 47 U.S. staffers, including Gray, Fallon, and their producers, Nick Offenberg and Sara Patterson.

Suddenly they had no income, significant responsibilities — Fallon was a new parent and Gray had a mortgage — and no claim to the podcast they’d created and built over six years. Under their general employment contract with HuffPost, the intellectual property of the podcast they’d created — the concept, the title, the branding, and the feed — was wholly the property of their employer, which was now BuzzFeed.

It was the middle of a “Bachelor” season and they knew they needed to keep publishing episodes if they didn’t want to lose their audience. A few months before the layoff, the pair had created a Substack called Rich Text, which they saw as a more casual space to publish work that might not fit HuffPost.

“We were making basically no money on it before layoffs and I don’t think we even published any paywalled content,” Gray said. “We essentially looked at it as, ‘Maybe we’ll make some fun tip money!’”

When they lost their jobs, what was a casual newsletter became a lifeline connection to their audience.

“We needed to give people that cared about our work a chance to financially support us,” Gray said. “And that was a very uncomfortable proposition.”

What happened to Gray and Fallon is not unique. Most work in the media industry is work-for-hire: Anything workers create while employed is automatically owned by their employers. But when job security in media is a thing of the past, media workers are increasingly looking to create their own stability in the form of owning the intellectual property they develop.

Gray said she and Fallon never discussed IP ownership with HuffPost when they were creating the podcast. “I don’t know that we ever thought about it as making money,” Gray said. “We were very much made to feel — and did feel — like it was like a gift to let us do it.” So when they lost their jobs, they immediately started trying to figure out how to keep their podcast.

“When we initially got laid off, we tried to take a hard tack and be like, ‘We’ll be taking the show with us. You put no money into it,’ and they were like, ‘Absolutely not. You won’t be doing that. We own it,’” Gray said. BuzzFeed has a history of fraught negotiations over IP ownership that made it impossible to simply give a podcast to hosts; since 2017 it has refused to reach a deal with Heben Nigatu and Tracy Clayton, the hosts of the popular podcast “Another Round.” When BuzzFeed canceled the podcast and laid off the podcast team, it refused to turn over complete ownership to the hosts and instead proposed a deal where they could license the IP and their back catalogs. (Disclosure: I worked on the podcast team that produced “Another Round” and BuzzFeed’s other podcasts, and I was laid off when the team was disbanded.)

“It was indicated to us that maybe in the future, there would be a way for us to license our own show from them, but like that could take a year to work out and they were not going to give any of it to us,” Gray said. “So then we were like, can we buy it ourselves? And that basically seemed to not be an option. No one would talk to us about that.”

With the “Bachelor” season rolling, and Gray and Fallon realized they needed to choose between two major assets at stake: the show’s IP (the title, branding and format), and the podcast feed. They decided to prioritize the feed because it would allow them to create a new show identity while retaining the audience they’d built over the last six years.

“We loved our branding and I still get really sad and feel really attached to ‘Here to Make Friends,’” Gray said. “But we knew that the thing that was more valuable and that we had to prioritize was that feed where all of our episodes lay, and where our audience was.”

The pair partnered with Stitcher, which purchased the feed from BuzzFeed and reverted ownership to the pair. They rebranded the show as “Love to See It with Emma and Claire,” created show art that featured their names and faces prominently, and paid a lawyer to trademark it all. Now, Gray and Fallon make the majority of their incomes from Substack subscriptions and podcast ads.

I asked Gray if she could see herself returning to a newsroom to host another podcast. “I would not start a show with a media company without having an explicit exit plan laid out, and without having it in my contract that I had some ownership rights or path to ownership,” she said. “It’s a really weird thing to have a brand be built around you and your personality and your ideas and then to just be laid off without warning and have zero rights to the thing that we had. It felt really destabilizing and terrible and I wouldn’t put myself in that position to have that happen again.”

When BuzzFeed cut them loose, Gray and Fallon reentered a media economy that looked completely different from the one they joined in 2011, when they started at HuffPost.

Here’s how journalism used to work: A news organization hires a journalist for a salary drawn from a pot of money composed of revenue earned primarily from subscriptions and advertisements. The journalist reports stories, which become the intellectual property of the news organization paying their salary. Monetary value is derived from the journalist’s work as it drives public trust in the institution (subscriptions) and drives traffic to the piece (ad revenue). The journalist makes enough to live a stable middle-to-upper middle-class life. The journalist is happy, and stays in the job forever because of course there is no reason to leave — except for possibly a job in a bigger market — and a pension at the end of the road.

This is not what media looks like anymore. Digital ad revenue is not strong enough to sustain a robust media business, so organizations explore other forms of generating income: live events, subscriptions and memberships, podcasts, partnerships with digital companies like Facebook and Twitter, and intellectual property licensing.

These experiments often result in boom-and-bust cycles of hiring and layoffs as organizations grasp for profitability. For media workers, it means that any work they create in a given job that might have found an audience must be left behind when their labor is deemed redundant, or unnecessary for the business’s profit-making mission.

The other impact is that journalists’ work becomes worth much more than the potential revenue from ad sales or subscriptions; their employers stand to profit far more from Hollywood streaming deals than they’ve paid for the labor to generate that original reporting. A quick survey of scripted shows on streaming platforms that are derivative journalism products: AppleTV+’s “WeCrashed” (based on the Wondery podcast of the same name), Netflix’s “Inventing Anna” (based on a New York Magazine article), and Hulu’s “The Dropout” (based on the ABC podcast of the same name).

One might argue that Gray and Fallon joined the ranks of “influencer journalists,” those media workers who are workplace-agnostic, who have built brands of their own and now monetize them independently. Maybe that’s true. But the handwringing over this concept belies the reality that in an industry with so little stability, journalists must invest — and own — the work on which they created their reputations.

When they can’t rely on future employment, they must create stability for themselves — and that means paying attention to the “business side” discussions that many journalists haven’t been privy to in prior workplaces.

Labor organizing has followed suit. The New York Times Guild is negotiating for greater ownership options for employees. Lowell Peterson, executive director of the Writers Guild of America, East, said the WGA advocates for three primary protections at the bargaining table.

The first is the expansiveness of IP ownership: “Literally some of these news organizations take the position that everything you do when you’re working for them, they own, even if it has nothing to do with your journalism assignment,” Peterson said. “If you sit across the bargaining table and you listen to the companies’ IP lawyers, the dream you had belongs to them.”

The second protection is for journalists to create derivative works based on their previous work. For example, if they wanted to write a book about a similar topic they’d reported on. “So what we’ve been able to negotiate is procedural rights to make sure that you have the ability to have that negotiation and say, ‘No, you don’t really own this, I do have the right to create this derivative,’” Peterson said.

The third protection is for journalists who work on projects that their employers may want to spin into derivative products like TV shows, movies or books, “which appears to be a business model and more and more digital companies,” Peterson said. “And in a number of cases, we’ve actually got revenue pools and other financial guarantees, so that if there is derivative use made of your work, you get money or you get the right to participate.”

These are demands that are accomplished on a macro level, through collective bargaining. But there are things individuals can do, too.

Last September, Casey Johnston was laid off from her job at Vice. She’d been an editorial director focusing on coverage of health and fitness. She also wrote her marquee advice column, Ask a Swole Woman, where she answered reader questions about weight lifting, fitness, and diet culture.

You might expect this story to end with Johnston leaving behind her popular column and devoted audience and starting from scratch at her next job. But that’s not what happened, because Johnston owns the “Swole Woman” brand.

The column originated in 2016 at The Hairpin, part of the now-defunct Awl Network, which had a policy of deferring intellectual property ownership of all work to its writers. Co-founder Choire Sicha told me that he, co-founder Alex Balk, and the sites’ other co-founders “believed that the bare minimum of ethically appropriate behavior was to allow creators rights to their own work, though we asked that they allow us to host that work forever. … If we as publishers had wanted to get rich from selling rights, obviously we were perfectly welcome to come up with and publish ideas ourselves, instead of fracking them out of writers.”

Johnston took the column to Self and then to Vice, continuing to retain ownership, even when she was laid off. Johnston migrated her work archive to her website and continued to publish her column through her Substack, She’s a Beast.

Save for a fantasy world of stable and ethical employment, this is the best-case scenario for media workers who originate projects, franchises and other intellectual property that prove to be highly successful. Johnston says she wouldn’t have known to negotiate for those rights if she hadn’t first been granted them by an uncommonly generous former employer, but she encourages writers to do so, especially when they’re freelancing.

“As an editor who has seen lots of freelance contracts signed at all different places that I’ve worked, it is more normal than not for the writer to look at it and want to strike some things or change some things,” she said. “And it’s totally doable and doesn’t make you difficult or bad.”

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Alex Sujong Laughlin is the writer and editor of Poynter's The Cohort, a newsletter about gender in media. She's a writer and an award-winning audio…
Alex Sujong Laughlin

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