Friday, August 21, 2009

Victoria Strauss -- Publishers' Kill Fees, and Why They're Bad For Everyone

Traditionally, in the magazine and newspaper industry, a kill fee is "a negotiated payment on a magazine or newspaper article that is given to the freelancer if their assigned article is 'killed' or cancelled." (Read the full definition here.) The contracts for the magazine articles I and Ann Crispin wrote for Writer's Digest included kill fees--but that was a few years back, and I suspect they are less common now.

In the world of small publishers, however, "kill fee" means something quite different: a fee--usually a few hundred dollars--paid by an author to her publisher for getting out of a contract early. I've seen a lot of small press contracts that include kill fees, and it's my impression that such clauses are becoming more common.

For obvious reasons, kill fee clauses are onerous for authors, who in some circumstances might have good reason to want to end a contract early, and can't do so without opening up their wallets. Plus, many publishers employ kill fee clauses abusively, holding them over the heads of unhappy authors, or attempting to use them as an income source by offering to jettison dissatisfied writers at the slightest provocation, or terminating the contracts of writers who've pissed them off and demanding the fee even though termination wasn't the writer's decision. EPIC, an association for epublished authors, identifies kill fees as a red flag contract clause--one that authors should absolutely avoid. I agree.

From an honest small publisher's perspective, on the other hand--a publisher that isn't planning on browbeating its authors with kill fees, or using the fees to try and make an extra buck--a kill fee may seem to make good business sense. "We don't want to hold onto an unhappy author," the publisher might reason. "But we invest a lot of work in editing, designing, marketing, etc. So if we can't maximize our investment by selling the author's book for the full contract term, it's only fair that we should get some reimbursement if she decides to leave early."

Problem is, if the unhappy author can't afford the kill fee, the publisher will wind up stuck with her anyway--along with the extra resentment produced by the author's knowledge that she could have gotten free if only she'd had the cash. (I recently heard from an author and publisher in exactly this situation.) Alternatively, if the author can afford the kill fee, she may see it as an easy exit, and jump ship without giving the publisher the chance to address whatever problems she thinks she's having--thus losing the publisher a book it might have retained if it had had more time to work things out.

So kill fees are a definite writer beware--but they're a publisher beware too, because while they may sound good in theory, in reality they can backfire. For publishers willing to let their unhappy authors go, it's far simpler--and far more author-friendly--just to allow authors to terminate the contract at will, without the potential complications and and bad feelings of a kill fee. Or, if the publisher prefers to try to resolve the problems, not to include a termination provision at all, and make termination decisions on a case-by-case basis.

11 comments:

Jennifer Roland said...

I come from a magazine background, so I was intrigued by the title of this post. I always thought kill fees were a good way to protect a writer's needs.

But, this new type of kill fee does sound like a big red flag. Thanks for sharing this info so that we writers know to read more closely to see if common terms still have the same meanings in our new contracts.

Dharma Kelleher said...

I had not heard of this new definition of "kill fee". Thanks for getting the word out of it.

Andra M. said...

Ditto to Jennifer and Dharma. Seeking publishers right now, I'll keep my eyes open.

Thanks for the Beware.

Lydia Sharp said...

Excellent information. I just signed my first publishing contract a week ago (which did not include a "kill fee" clause), so this is a timely post for me. I'll keep this in mind when reviewing future contracts. Thanks!

sexywriter said...

A lot of publishers terminate contracts with authors "at will", even when they technically don't have the right to do so. (like when planned books on a contract are cancelled, or an acquired book is dropped before release without explanation). It's too bad authors often don't have the right to do the same.

I once had a terrible experience getting out of a contract with a bad publisher that was trying to hang on to rights it never planned to exercise. They finally let me out, but only after my agent and the agency's attorneys made the publisher's life hell.

Anonymous said...

The devil is in the details. How much of a fee for canceling how much of the contract. I don't really have a problem with their being a cost to terminate a contract early.

Mob Legend said...

Interesting post--I came to it because I'm encountering something much like this...

W. Haven said...

As an editor paid on a royalty basis, and who has spent hours on a book only to have the author leave the publisher, I can only say that I appreciated the fee my publisher charged the departing author. Editors work hard, and in my case, I would have put in days of work and received nothing, if not for the "kill fee".

Victoria Strauss said...

W. Haven, I think your experience is more of an illustration of why editors should never agree to work on a royalty basis. Paying editors (or illustrators, or marketers) royalties rather than salaries or fees is one of many ways in which unprofessional or dishonest small presses shift their costs onto staff and authors (where those costs do NOT belong).

Erin Lale said...

Kill fees protect the editor, cover artist, etc. against book pullers who wait for the publisher to do all the work and then pull their book right before publication so they can self publish and get free editing and cover art. This really happens, and kill fees are the response. And of course small indie presses don't compensate the same as the big 6. They can also take more risks on small market niches than the big 6, and for the same reason: because they aren't dependent on a mass market. If you got rid of the indies and were left with the only choices the big 6 or vanity presses, be prepared to lose GLBT fiction, interracial romances, and all the other market niches too specialized for the big 6.

Victoria Strauss said...

That's a false benefit, Erin. If you don't want your author to pull his/her book, then don't allow him/her to terminate early. It's perfectly acceptable for a publisher to lock an author in for a reasonable amount of time (say, one to three years after publication) in order to recoup their investment. Allowing early termination and imposing kill fees may put some money in the publisher's pocket, but at the price of considerable inconvenience and hassle for everyone involved.