How kill fees ruin writers, hurt magazines and destroy...

Just about every journalism contract contains a clause called a “kill fee” that states that if the magazine decides not to run a particular story then it will pay out only a fraction of the agreed upon rate. The writer is then free to sell the story to another publication. The logic behind this policy is that the clause is insurance so that a writer won’t simply accept a contract and then write a half-baked and poorly reported story and then run off with the full payment. Unfortunately the kill fee serves a much more diabolical role in the modern magazine industry. Not only it is bad for writers, it also exposes magazines to potential libel suits and degrades the overall quality of journalism in America.

Last week I had a conversation with a former editor at the New York Times Magazine who told me that they kill between 1/4 and 1/3 all assignments they issued to their on-contract writers. The magazine killed a much higher percentage of stories that they assigned to freelancers who weren’t already on the masthead.

While a kill fee is supposed to be insurance against bad writing, the NYT magazine was using it in a different way. A story can be killed for literally any reason: not only because of poor quality, but because an editor no longer thinks an idea is fresh, or that a character doesn’t “pop” on the page, or the piece was covered in another magazine between the time it was assigned and then scheduled to be published. (Those are three reasons that I’ve had stories killed over the years). Instead publications now routinely use the kill fee system as a way to increase the overall pool of material they can choose from to publish.  They intentionally over-assign and account for a certain percentage of killed pieces in advance.  Stories that are on the bottom of their list don’t make the cut.  This policy has nothing to do with the quality of what a writer submits, rather a business model that intentionally transfers risks reporting onto the backs of their authors.

Anyone who has written for a major publication knows that there is a wide gap between what a writer pitches to a magazine and what they encounter when they are actually reporting a piece in the field. This is the basic  disconnect between any proposal and the reality on which that proposal hangs. There is no guarantee that when a reporter gets out into the field that they will find the juicy narrative anecdotes that will make a piece sing on the page. Still, the only way to find out what is happening in the world is to actually do the work, travel to the locations, report the hell out of what you find and then try to write it up.

Let me give an example. A year or two ago I took an assignment with the NYTimes magazine about an epidemic of counterfeit drugs in India that had been reported on by several NGOs. The pitch went well and I flew across the world to look for evidence. When I got to Delhi, however, it turned out that the issue was essentially made up by major pharmaceutical companies in order to keep their market share secure from loose Indian patent laws. It was a different issue from the one I pitched, and the editor wasn’t interested in the actual facts.  I spent a month searching for evidence of a large-scale counterfeit market that Big Pharma had promised but couldn’t find anything strong enough. When I came back to America I sent the best draft of the piece I could to my editor. He didn’t like it. So I rewrote it. He wanted stronger anecdotes, so I rewrote it again. Over the course of the next seven months I rewrote the draft at least 9 times from scratch looking for better angles and more powerful anecdotes.  In the end the editor, who never really gave me much useful feedback despite my endless rewrites,  killed the piece. The NYTimes issued me a 25% fee as per the terms of their contract.  I had spent the better part of a year working on the story.

There are two major problems with this. First, I worked in good faith that the story I published would eventually appear in the pages of the magazine. If the same editor had hired a painter to slap a new coat of paint on his house, but at the end of the day decided to that the color wasn’t quite right, he would still have to pay the painter a full rate for the work that he did do.  Apparently the same rules don’t apply to writers.  Instead I had spent a great deal of effort on a piece that not only would never appear in print, but that I didn’t even receive the expected fee for.

For those unconcerned about writer’s finances lets talk about the second problem. Think instead of what this does to a journalist in the field whose paycheck, rent, insurance, loan payments and everything else literally depends on the salaciousness of their story. The journalist may have an incentive to take extra risks during their reporting–going to increasingly hostile and difficult terrain in the hopes of finding the right salacious anecdote. Or, perhaps even more disheartening, they might decide that the only way to get full pay is to simply make things up. In the last decade the media has been racked by one journalism scandal after another where poorly reported stories resulted in lawsuits and made the public at large distrust major news organizations. Just this year a Rolling Stone reporter completely failed to check a rape allegations at UVA resulting in what will likely be a costly libel lawsuit. Would it be any shock if the reporter worried that her story might get killed if her details weren’t cover worthy enough that she was seduced by the perfect anecdote? Who is to say that I wouldn’t have been able to save my story, seven months of work and 75% of my income if I had just played a little more fast and loose with the anecdotes that I came up with when I was reporting in India? Certainly I had incentive to do so. The only thing that stopped me was a general sense of propriety in my work.

If, on the other hand, publications paid people for the work that they actually conduct in the field, then there would be less financial pressure to take extra risks or make up facts while on assignment. Publications, in turn, would have to worry a little bit less about the safety of their reporters and the quality of journalism that they publish. It’s not as if the major magazines don’t have enough money to pay writers for the work they do in the field. Last year the New York Times posted a profit of $92 million. Conde Nast, the publisher of GQ, Wired, Vanity Fair and the New Yorker in turn, spends less than 1% of its gross revenues on words.

The policy of magazines paying almost nothing for killed stories needs to change. When a reporter goes into the field they need to be secure in the knowledge that the magazine has their back even if the world turns out to be more complex than the original pitch.  Killing the kill fee would be good for writers and good for the magazines they write for.

__UPDATE: This, of course is pretty bad news for freelancers, but there are a few ways to fight back. I recently started offering an online video course teaching some of the tricks that I use to negotiate better contracts, and grow my freelancing business from nothing to becoming a New York Times bestselling author.  It might be useful for you. Check it out.