Should I agree that author retain copyright on translation of not-yet published literary ms.?
Thread poster: Suzan Hamer

Suzan Hamer  Identity Verified
Netherlands
Local time: 03:53
English
+ ...
Feb 26, 2010

I've been asked to translate a work of fiction that has not been published in the source or any other language, an unpublished manuscript. The author wishes to submit the English translation for publication. We are at the contract signing stage and it all seems quite clear and above-board until I come to the clause: "The author has the complete copyright of the Translation of the Manuscript." Before signing the contract, I've been googling and reading ProZ forums and am now totally confused. Everything I've read so far concerns already-published books, not manuscripts to be submitted for publication.

I understand the author's wish to retain the copyright; he wrote the book. It's his creation. My research has made clear that I as the translator am the author of the translation. And I read also that with a work for hire, the employing party is the author. I'm assuming that since the author is paying me to translate the text, it is a work for hire. If it is, does that mean I give up all rights to the translation (financial or otherwise) once I am paid?

Has anyone been in a similar position? I don't know what to do. From what I've read, it doesn't seem wise to give up my ownership of the translation. I've read that ownership is not the same as copyright. What bearing does this have on my rights as a translator?

This contract is a contract for the translation. No publisher is yet involved. If I agree that the author has the complete copyright at this stage, am I giving up my rights as translator if and when the book is published? (By the way, the author is in one EU country and I am in another, if that has any bearing on the situation).

In the contract between him as author and me as translator, the author has stipulated that WHEN the book is published, I will be entitled to a certain percentage of his royalties, as well as any royalties due me directly from the publisher, as the translator. As he is not the publisher, and does not yet have a publisher, I'm taking this with a grain of salt, but still I feel it shows the author's good intentions towards me. At the same time, I'm wondering if any such statements at this stage are even valid.

I have the feeling that the job will not go through if I do not agree that the author retains the copyright. I want to do the job, but I don't want to be giving up rights that I should be retaining. (I have seen mention of joint copyright. Anyone know how this would work?)

I know there are other forum threads related to this subject, but so far I have found nothing addressing my situation exactly. I've reached the confusion point, so have decided to ask on the forums. I would really like to hear from someone else who has been in a similar situation or knows the correct (most advantageous to me) way to handle this.


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Samuel Murray  Identity Verified
Netherlands
Local time: 03:53
Member (2006)
English to Afrikaans
+ ...
Some comments (or guesswork) Feb 26, 2010

Suzan Hamer wrote:
My research has made clear that I as the translator am the author of the translation. And I read also that with a work for hire, the employing party is the author.


The phrase "work for hire" may be an American term, and you're not American. The copyright laws in your country may work different from that of America. I know that the laws in my country certainly do.

In my own country, the issue is not whether you get paid for the work or not, but whether you are an employee of the person who pays you. In other words, do you receive a salary from him for a certain number of hours' work per week, and get all the other benefits that employees are generally entitled to? If so, then he has certain rights to the copyright of your translation, but if not, he generally has no claim to the copyright of your translation whatsoever, unless you grant him a license. But I'm told the laws in America work slightly differently, so just make sure what the laws in your country says.

I have the feeling that the job will not go through if I do not agree that the author retains the copyright. I want to do the job, but I don't want to be giving up rights that I should be retaining.


In my country (and if I understand the Berne Convention correctly (which your country may or may not fully implement)), the translator has copyright of the translation, but he can't publish the translation without the consent of the original author. So even if you retain your copyright, you won't be able to publish the work unless the original author had given permission for it.

Try getting the word "copyright" in the contract changed to "license". In other words, the translator gives the author a license to publish his translation, in exchange for the amount you'll be paid plus the royalty amount. Or, make it an exclusive license for (say) 5 or 10 years. This means that the author has the sole right to publish your translation, until the period ends.


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Brian Young  Identity Verified
United States
Local time: 18:53
Danish to English
working relationship Feb 26, 2010

I agree with the good advice from samuel. If you were an employee, working in this guy's office, on his computer, getting a paycheck, then it would be another matter.
If you are working as an independent contractor then you should insist on retaining the copyright. I have copyrighted translations with the US copyright office. Fortunately for me, the authors had been dead for over 70 years, and the works are in the public domain.
In your case you'll either have to stick to your guns, as they say, or cave in if the translation work is that important.
If it were me I would insist on having the copyright.


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Claudio Brandt  Identity Verified
United States
Local time: 21:53
English to Portuguese
+ ...
Have a lawyer look at your contract Feb 26, 2010

Suzan, my first advice to you is this: have a lawyer review your contract to discuss probable consequences and the enforceability of certain clauses, specially the ones promising royalty payments of any kind. Please don't take any of my thoughts as legal advice, which I'm neither prepared nor qualified to offer. Also, everything I say applies to the US, but I hope it may offer you some guidance on how to look at the issue.
Suzan Hamer wrote:
I understand the author's wish to retain the copyright; he wrote the book. It's his creation.

As an author, he has the copyright to his original work, not to the translation. A translation is a derivative work, a work that can only be done for publication with the authorization from the copyright owner of the original content. And who holds the copyright of a translation? The translator, unless he gives it up in a written agreement. But for practical purposes, the copyright of a book translation is in most cases owned by the publisher, who in most cases is the entity that pays for the translation. So here the author is taking the role of publisher (perhaps he/she intends to self-publish), paying you for the job and asking that you give him the copyright, as a publishing company would do.

I'm assuming that since the author is paying me to translate the text, it is a work for hire. If it is, does that mean I give up all rights to the translation (financial or otherwise) once I am paid?

In the US, to be considered work for hire the translation must be either done as part of permanent employment, or be commissioned under a contract that specifies it is a work for hire. However, in your case, that would be irrelevant once you accept the clause that transfer copyright ownership to the author of the original book.
From what I've read, it doesn't seem wise to give up my ownership of the translation. I've read that ownership is not the same as copyright. What bearing does this have on my rights as a translator?

AFAIK, most translators do not retain copyright of books they translate because the publishing companies will always spell out a work-for-hire clause in their contract. There are cases of renowned translators who avoid this clause and get a royalty proportional to the book sales, but you have to be famous or somehow in high demand to justify for a publisher to offer you this treatment. One such case is that of the couple of Russian translators Richard Pevear and Larissa Volokhonsky, who have translated several books by Tolstoy, Dostoevsky and other Russian masters. If you check the copyright page of one of their translations, you may verify that they hold the copyright by checking the "Look inside" feature at Amazon.com. You can also check books in your own library to see whether in your country translators are normally assigned the copyright for what they translate. Notice however that giving credit to a translator is different than giving copyright. If the translator owns the copyright to a book the copyright notice of the book should have this clearly stated.
This contract is a contract for the translation. No publisher is yet involved. If I agree that the author has the complete copyright at this stage, am I giving up my rights as translator if and when the book is published? (By the way, the author is in one EU country and I am in another, if that has any bearing on the situation).

If you sign to the contract with that copyright cession clause, yes, you are giving up the copyright and will not be entitled to any other remuneration when and if the book is published. Notice that by using the "when and if" qualifier, you are implicitly acknowledging that the book may never be published, in which case you will have made your money (the translation fee) nevertheless, unlike the author, who will only see any money if the book is published and sells. This is a big part of why and how publishers operate. They make investments upfront, including the cost of translation, and they may or may not profit from any given title. It's up to you to accept the job of translation, but once you do, in most cases you will be signing a work-for-hire clause and transferring the publisher (in your case, the author) the copyright of a translation.
In the contract between him as author and me as translator, the author has stipulated that WHEN the book is published, I will be entitled to a certain percentage of his royalties, as well as any royalties due me directly from the publisher, as the translator.

If the contract stipulates a percentage, that's good news. I would have a lawyer review your contract to see whether this contract is enforceable. As for "any royalties due me directly from the publisher", I think it very hard to believe that any publisher would pay anyone other than the copyright owner for the publication of a book.


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Tina Vonhof  Identity Verified
Canada
Local time: 19:53
Member (2006)
Dutch to English
+ ...
Before you begin... Feb 26, 2010

Suzan,

I am no expert on the copyright issue and there seems to be much good advice above, but I would like to comment on the project itself. Before you begin...

Make sure the author has a publisher. Don't start on a book without some guarantee that it will be published. The book's journey from computer to store shelf begins with an elaborate book proposal, including a rationale (why is this interesting, who will buy the book, etc.), timeline, outline, table of contents, and the introduction or (part of the) first chapter. It should include the credentials of the author and also your credentials as a translator. There are books on the market on how to write a good book proposal and there are also directories of publishers and their areas of interest. The author and you may have to work on this together and for this part you should get paid regardless of what happens next.

Only when the proposal has been accepted by a publisher and a contract signed should you actually start translating the whole book. Try to figure out how long it will take and count on it that it may end up consuming most of you waking hours. If you are interested or passionate about the topic (and you'd better be!) you will start to think of it as 'your' book. You would essentially have to take a 'leave of absence' from any other (translation) work, so make sure it's going to be worth your while financially.

You may want to think very carefully whether you want to 1) get paid by the author (in which case you would have to have a contract with him) or whether you want to 2) do the translation in return for co-authorship and (a share of the) royalties (in which case you would have to have a contract with the publisher). In the first scenario you have a guarantee, in the second you don't - much depends on how the book is marketed and how well it sells. As others have pointed out, if you are seriously considering this, get the advice of a lawyer on both the copyright and the financial aspects.


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Suzan Hamer  Identity Verified
Netherlands
Local time: 03:53
English
+ ...
TOPIC STARTER
Thanks to everyone for their remarks and advice (so far), Feb 26, 2010

it's all been helpful and useful.

To Tina, I've agreed to do the translation knowing there is no guarantee that it will be published. My contract is with the author and he is paying me. Because he cannot afford to pay me my going rate, he has offered a percentage of his possible/potential royalties in addition to any I might be due as translator if and when the book might be published. I'm not counting on it being published (!) It's a project I want to do... and don't mind doing at the rate offered (even without the royalties, although of course, any future income from the book won't hurt).

The truth is, I did a sample translation and am now dying to read the rest the book!

The author is a published author, but in another field, and feels pretty confident that this book too will be published. But, as I said, I am not counting on it. I didn't just fall off the turnip cart yesterday.

And yes, I know it will take over my life. I'm just finishing editing a book manuscript in English and the same thing has happened with that. I'm rather pathetic. I regard every text I work on as 'my baby'. The final result has to be perfect (and if it isn't, I nag--uh--encourage and nurture the writer to rewrite until it is, or do it myself).

But I digress, the issue here is that I didn't realize when the writer said he wanted to retain full copyright that he was actually asking me to sign over my copyright to the translation. I was all ready to do that and then I googled 'translator's rights' ... sometimes ignorance IS bliss.

To you who advised seeking legal advice. That just seems to be making such a big deal out of it. I was hoping someone else would have had a similar situation and a nice easy cut and dried solution. I guess I wanted to know if "the-author-has-complete-copyright-to-the-translation" was commonly used and agreed to by translators, a mere formality. I suppose now my choice is to go to the trouble and expense of seeking legal advice or to take my chances and trust the good intentions of the author.

I just want to translate the book and be justly compensated for my efforts, skill and intelligence.

This brings up the whole business person or translator/editor issue. I try to do well at both, but at heart I'd just rather ignore the business part and get on with the word play.

[Edited at 2010-02-26 21:30 GMT]


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FarkasAndras
Local time: 03:53
English to Hungarian
+ ...
I'd just sign on the dotted line Feb 26, 2010

Of course you could also stipulate that you demand X percent from the revenues of any subsequent editions of the same book that use your translation.
Other than that, I see nothing wrong with handing copyright over to the author or publisher. You weren't going to publish the book yourself anyway, were you?

If you're interested in the project and you're happy with what you're getting paid (and consider the extra percentage from published books a bonus), just go ahead and do it.


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