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March 2003

Kill Kill Fees: Make a freelancer's day

by Jim Morrison

Care to ruin a freelance writer's day with only two words? Just say "kill fee."

A kill fee, as we know all too well, is payment of a fraction of the agreed-upon fee—perhaps 25 percent—when your editor (or her boss) decides not to use your story—for any reason.

I've poked around looking for the origins of kill fees—without success. Logically, they may have been intended to protect a publication handing an assignment to a new writer with great clips only to learn those stories were heavily massaged by an editor and don't reflect the writer's ability. In return, the writer receives something, rather than nothing.

I've always thought the kill fee favored publishers far too much. Sure, there's the occasional writer who fails to deliver. But shouldn't an editor practice a bit of due diligence before assigning a piece?

I've long used the CD analogy when it comes to kill fees. If I've heard and liked the artist's old work (clips) and I like the new radio single (the query), but I don't like the new album, I don't get 75 percent of my money back. I'm just less likely to buy a future album. The point is, I've done my homework. I may be out $15, but next time I'm less likely to buy that artist's CD.

In today's market, the imposition of capricious kill fees has become far too widespread. Many contracts say it's the assigning publication's "sole discretion" whether to pay a full fee. That's much too one-sided.

I've heard from writers about stories being killed because the editor accidentally assigned a piece too similar to a story already in inventory. Whose fault is that? Stories are killed because a sufficient number of advertising pages didn't materialize, but writers are not responsible for selling sufficient advertising space. And veteran writers report receiving assignments generated by the publication and then are told it was killed because the publication no longer wanted to explore the issue. That's ridiculous.

To be fair, I also know writers who have received full fees when stories were killed for reasons beyond their control. But we shouldn't feel grateful. That's the right thing, the fair thing.

So what should we do?

Some ASJA members have been successful in striking the kill fee clauses in their contracts, reasonable if you're a regular contributor to a publication.

For publications unwilling to do that, I think there's a more balanced approach than the "sole discretion" kill fee clause. After all, let's be honest: there are times when writers fail to deliver. There are sloppy, unprofessional writers among us. Perhaps publishers should have some protection. So let's have a partial payment fee balancing the responsibility between editor and writer. Let's have one that requires trust in each other.

ASJA member Rogier van Bakel, an editor and a freelancer, offers a reasonable alternative: "If it were up to me, a kill fee clause would specifically say that the writer will get paid in full if the piece is on time and of a professional quality that's at least on a par with the rest of the publication's editorial. If not, the story may be legitimately killed.

"The clause would also spell out that a kill fee cannot be applied if a story is deemed unsuitable for reasons beyond the writer's control: the editors have simply changed their minds; they have been incomplete or unclear in their briefing to the writer; the topic has grown stale since the day of the assignment; et cetera. Some of these things are still value judgments, of course, with the editor inevitably making the final (quite possibly biased) decision. But including that kind of language in the kill fee clause would at least signal the publication's integrity, and its sense of fairness."

To be sure, Rogier's wording still leaves the decision in the hands of an editor. But it also forces an editor to be reasonable. If not, a writer may have reasons to take legal action.

In the meantime, we know there are publications infamous for killing stories for no good reason. Let's not permit them to labor in obscurity. Get the word out. Tell other writers about them on bulletin boards.

Each time a new contract with a one-sided kill fee clause crosses your desk, challenge it. Request changes. The more editors hear those requests, the more likely we'll see kill fees killed—or, at least, made more balanced.

As always, feel free to send me your comments at prez@asja.org.

Jim Morrison, of Norfolk, Virginia, is President of ASJA