To begin, let’s distinguish “kill fees” in social media influencer contracts and “kill fees” in writing/publishing contracts.
“Kill fees” in publishing relate to fees paid by publishers to writers/content creators if the content is not published through no fault of the writer/creator. The “kill fee” is often 25% of the fee that would have been paid had the article or content been published. Importantly, the “kill fee” is for work completed.
In the social media influencer industry, “kill fees” are designed to compensate the influencer if the business, advertiser, or brand terminates — kills — the contract for any reason other than the influencer’s breach of contract. The Social Media and Internet Law Attorneys at Revision Legal offer some thoughts on “kill fee” provisions in social media influencer contracts.
First, it is very unlikely that a social media influencer would ever receive an influencer contract that contains the words “kill fees.” The words “kill fees” are sort of “street lingo,” and they do not belong in a negotiated, drafted, and signed social media influencer contract. The more proper legal terms would be “No-Cause Termination Fees,” “Severance Fees,” or something of that nature. The use of proper and expected legal terminology is a signal of legal and business sophistication.
Second, there should never be Termination Fees for work already completed in the past. That is, like employment, a social media influencer is paid in the normal manner up to the point of termination. Any agreed-upon Termination Fee is forward-looking — that is, a fee related to work that will not be done because the contract has been terminated.
Third, because any Termination Fee is for work not being done, there are some legal nuances. In particular, the fee cannot be deemed a “penalty” or “punishment.” In simple terms, this means the Termination Fee must be reasonable and have some relationship to the fees that were being paid under the contract for the services being provided. If a court deems the Termination Fee to be a “penalty,” the provision will not be enforced.
Fourth, because of this, the Termination Fee provision must be carefully negotiated. In this regard, you absolutely should ask for and negotiate a Termination Fee provision. A Termination Fee protects you — the social media influencer — from having necessary cash flow suddenly and unexpectedly terminated. What is “reasonable” depends on the circumstances but is often based on the fees being paid, the length of the underlying contract, the importance of the services, etc. A rough comparison can be made with severance provisions in an employment contract.
Finally, any negotiated Termination Fee should be tied into other protective provisions such as various Notice provisions. Generally, Notice provisions require the parties to give notice of some sort — like in writing, via certified mail, etc. — that certain actions will be taken. Thus, it would be very helpful to negotiate a clause in the contract requiring the business, advertiser, or brand to send a 30-day Notice to the social media influencer before terminating the contract and triggering a Termination Fee payment. By tying these contract clauses together, a termination is less sudden and less unexpected. The social media influencer has at least some time to make alternative arrangements. Further, if the Notice is improper, then the Termination is improper.
There are other contractual provisions that can be negotiated to lower financial risk for the social media influencer.
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