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.

Negotiating the Termination Fee Amount

When negotiating a No-Cause Termination Fee, the amount must bear a reasonable relationship to the actual financial harm the influencer would suffer from losing the contract. Courts applying the law of liquidated damages — which is what termination fee provisions effectively are — require that the agreed fee represent a genuine pre-estimate of damages, not a punitive windfall. If the fee is grossly disproportionate, a court may refuse to enforce it entirely under the doctrine that disfavors contractual penalties. See, e.g., Wassenaar v. Towne Hotel, 111 Wis. 2d 518 (1983) (articulating the two-prong test: difficulty of estimating actual damages at the time of contracting, and whether the stipulated amount is a reasonable forecast of compensatory damages).

A practical approach is to structure the termination fee as a declining percentage of the remaining contract value. For example, if the contract runs twelve months and the brand terminates after month three, the fee could be 100% of the remaining nine months’ compensation. If terminated in month nine, the fee drops to roughly 50% of the remaining three months’ compensation. This sliding-scale approach demonstrably ties the fee to anticipated lost revenue and has a far stronger chance of surviving judicial scrutiny than a flat-fee penalty clause.

Exclusivity Provisions and Their Interaction with Termination Fees

Many influencer contracts include exclusivity clauses preventing the influencer from promoting competing brands for the contract’s duration. When a brand terminates without cause, those exclusivity restrictions should terminate immediately as well. A well-drafted Termination Fee provision should expressly state that exclusivity obligations survive termination only until the fee is fully paid — and that non-payment of the fee voids any surviving restriction. Without this language, an influencer could be left in the worst of both worlds: receiving no compensation and simultaneously being unable to take on competing work.

Stealth exclusivity is another concern. Some contracts impose broad “category exclusions” (e.g., no promotion of any beverage brand) that effectively function as exclusivity provisions but are buried in content-restriction sections rather than labeled as exclusivity. These must be identified during negotiation and tied explicitly to the termination fee and notice framework.

Notice Provisions: Practical Drafting Considerations

A 30-day advance written notice requirement before termination accomplishes two goals. First, it gives the influencer time to seek replacement income. Second, it creates a procedural hurdle that can invalidate defective terminations. A termination notice should be required to: (1) be in writing, (2) state the effective termination date with specificity, (3) be delivered by certified mail or another traceable method, and (4) be addressed to the influencer’s designated legal representative if one is named. If the brand fails to satisfy any of these requirements, the termination itself can be challenged as procedurally defective.

Notice provisions should also address what happens during the notice period. Does the influencer continue posting content? Does the brand continue paying the standard fee during the 30-day window? Are deliverables reduced or suspended? These operational details prevent disputes during what is already a contentious transition.

Content Ownership After Termination

One frequently overlooked issue in termination scenarios is the fate of previously created content. If the influencer has posted ten sponsored pieces for the brand, does the brand retain the license to keep that content live after a no-cause termination? The answer depends entirely on how the content license is drafted. A prudent influencer should negotiate for content licenses that terminate (or become revocable) upon a no-cause termination unless additional compensation is paid. This gives the influencer leverage in fee negotiations and prevents brands from benefiting indefinitely from content for which they terminated the relationship.

Under copyright law, the influencer is generally the original author of posts, videos, and creative assets they produce, meaning they hold the underlying copyright unless there is a written work-for-hire agreement or an express assignment. Understanding this default rule gives influencers meaningful negotiating power over post-termination content use.

State Law Variations on Liquidated Damages

Whether a termination fee will be enforced depends heavily on which state’s law governs the contract. New York courts apply a two-part test: (1) actual damages must be difficult to estimate at the time of contracting, and (2) the stipulated amount must be a reasonable forecast of just compensation. California courts take a somewhat more permissive approach under California Civil Code § 1671(b), which presumes liquidated damages clauses are valid unless the challenging party shows the amount is unreasonable under the circumstances. Michigan courts apply the same reasonableness standard. For this reason, the choice-of-law clause in an influencer contract has material consequences for how a termination fee will be treated, and influencers should understand what they are agreeing to before signing.

Contact the Internet Law and Social Media Attorneys at Revision Legal

For more information, contact the experienced Internet Law and Social Media Lawyers at Revision Legal. You can contact us through the form on this page or call (855) 473-8474.