A new client sent me an Author's Agreement instead of a Translation Agreement - I can't sign it
Thread poster: Sarah McDowell

Sarah McDowell  Identity Verified
Canada
Local time: 14:20
Member (2012)
Russian to English
+ ...
Nov 12, 2013

I need some advice for a rather unusual situation that I have now. A new client (not an agency) sent me an Author's Agreement instead of a Translation Agreement. I am referred to as the "Author". The contract constantly refers to the "Composition" rather than the Translation.

Upon reading the Agreement, I would actually be BREAKING some of the terms of it by completing a translation.

For example, here's an excerpt from the section on "The Parties' Responsibilities":

3. THE PARTIES’ RESPONSIBILITIES
3.1. The Author's responsibilities:
3.1.1. to create the Compositions in accordance with the Order, in the manner and time stipulated in the Order.
3.1.2. to create the Compositions personally.
3.1.3. follow Customer's instructions concerning creation of the Compositions, and take them into account during production process.
3.1.4. report to Customer at its request any information relating to the progress of creation of the Compositions.
3.1.5. not to disclose the script and/or materials used by the Author in creating a Composition, constituting confidential information, to third parties.
3.1.6. not to infringe the intellectual property rights of third parties, when creating a Composition. Should it be necessary to use protected objects of intellectual property rights when creating a Composition, the Author undertakes, independently and at its own expense, to conclude relevant agreements with rightholders on the use of such objects, and transfer them to the Customer as a part of the Composition.
3.1.7. to pass a final version of the Composition to the Customer no later than the date specified in the Order.

In particular, I would be violating point 3.1.6 about third party intellectual property rights just by doing the translation because I am using the author of the original text's intellectual property in translating it.

Another thing is that the customer's address is in a completely different country than where they are actually physically located. Is this normal? I suppose that they may have the business registered in another country but the actual agreement doesn't list any particular person's name on it as a person in charge of the company, just the company name. I was wondering if this was normal for agreements.

I would appreciate some advice of veteran translators about how to best proceed with this client.

Many thanks,

Sarah


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Karen Stokes  Identity Verified
United Kingdom
Local time: 20:20
Member (2003)
French to English
Talk to the client Nov 12, 2013

Hi Sarah,

I'd simply go back to the client and explain your concerns. It may be a simple mistake, i.e. they've actually sent you the wrong agreement in error or they may not be familiar with the business of translation and have assumed an author's agreement will do, without realising that the implications of the two tasks are different. If not, you need to talk to them about why you can't sign it as it stands and negotiate any clauses that are giving you concern. On point 3.1.6. in particular I would make it clear that they, as the party commissioning the translation, need to deal with any copyright issues before commissioning you to produce it.

Good luck!
Karen


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Sarah McDowell  Identity Verified
Canada
Local time: 14:20
Member (2012)
Russian to English
+ ...
TOPIC STARTER
Thanks Karen Nov 12, 2013

I already sent an e-mail to the client telling them that the agreement that they sent me was the wrong one. It turns out that they did not send it to me by mistake and have actually been using that agreement with other translators before. But they also said that they will get their lawyer to draw up a new agreement for our collaboration.

Overall, the agreement was rather strange with a 3-year non-competition clause after the end of the agreement. That seems a bit excessive. I know that some agencies may have such clauses but they are a direct client so the non-competition clause makes no sense.

It also said that they could basically request unlimited rounds of corrections to the "composition" at no additional compensation to the "Author".

I can't possibly sign the agreement because there were so many things that I was against in addition to the fact that it was not appropriate for a translator.

Here's what they said in reply to my e-mail saying it wasn't appropriate for translation:

"Actually, we are using this agreement for translation works as the result we get a new text, a new product."

I think that creating a new text is not the same type of work as translating an already existing text. I would be violating the intellectual property of the writer of the text that I am translating so the agreement is flawed from the start.


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Sarah McDowell  Identity Verified
Canada
Local time: 14:20
Member (2012)
Russian to English
+ ...
TOPIC STARTER
Update Nov 12, 2013

The client consulted their lawyer. They were thinking about making a new agreement but it doesn't sound like they are now.

Here's what they said about it: "Translation is considered by the international law as creation of the new product. So the agrement we sent to you should be appropriate."

Do you agree or disagree with this? Legally speaking is it indeed the creation of a completely new product or not? I would say that it's a new product BUT it's based on an existing product because it's different than just writing an entirely new piece of work.

Sarah


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Irena Kacarski-Kimova  Identity Verified
Macedonia (FYROM)
Local time: 21:20
Member (2006)
English to Macedonian
+ ...
Translation is copyright work Nov 12, 2013

Dear Sarah,

of course you need to work out the particularities of the agreement with your client to the satisfaciton of both sides, but your client was not at all wrong to consider translation as a copyrignt work as the translator recreates the work in another language. Hence, author's contract applies to transaltion as well, in adition to other copyright work. Here, in Macedonia, I often sign author's contracts instead of translation service contracts.

Translation is usually mentioned in laws on copyright and related rights, giving the rights of authors to translators as well. Signing an author's contract would most often be the case for literary translation, but there is no particular reason to waive this right for other types of translation as well. The author's contract may even spell out more rights than a service (translation) contract - those inherent to the translator as an author (certain percent of earnings from subsequet issues of the work, etc.) as provided by law.

So they were comletely right when they said "Actually, we are using this agreement for translation works as the result we get (is) a new text, a new product."

However, it is true that you should not be responsible for obtaining any consents from anyone (authors and suchlike) unless you are a publishing house, or this is part of your business. They are commissioning you to do the translation and they should acquire all necesary documents, agreements, pay royalties to the authors, whatever is needed, before they give it to you and you start the translation or before the translation is finished, in the worst case. Anyways you should not accept any responsibility with respect to this unless this is part of our business, you have done this before and know how to deal with it and receive due compensation form the client for the time and work put into it.

Of course, you should check what the law in your country says about translation and copyright, and probably someone from your country will tell you more about the local practice, but as there are international documents and rules on copyight, translation should, at least certain types of translation, be copyright work in most countries in the world.


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Giles Watson  Identity Verified
Italy
Local time: 21:20
Italian to English
Don't... Nov 12, 2013

... sign anything you're not comfortable with!

Sort out what you don't like about the arrangement and perhaps make a counter-proposal (to be honest, it doesn't sound as if the publisher has given this matter much thought).

Why don't you get in touch with your professional association? They might be able to vet your contract or provide you with a translator-friendly version on which to base your negotiations.

If you like, you can download a commented Guide to Translator/Publisher Agreements from the Translators Association in London (UK, not Ontario) for a tenner, free to members.


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Łukasz Gos-Furmankiewicz  Identity Verified
Poland
Local time: 21:20
English to Polish
+ ...
... Nov 12, 2013

Sarah, translators are authors too. 'Composition' is a generic word to describe a copyrighted work. No problem with that.

On the other hand, like Irena says, you shouldn't be responsible for any sort of consents, permissions licences etc... unless you outsource your translation, in which case it makes sense. But I wouldn't sign any such clause without adding a very clearly worded disclaimer that I had no responsibility for anything to do with the copyright of the original document.

Be careful, as I've heard of at least one court case lost by a translator allegedly duped into signing that kind of clause, then failing to get the original author's permission.

Also, direct end clients don't need non-competes, and nobody should be entitled to an unlimited number of preferential rewrites. In fact, personally, I'm pretty much an opponent of any preferential edits in translation because that's basically not our job. Our job is to translate, not to please somebody by using his favourite structures and words within one single language or by following his direction like a typist.


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JL01  Identity Verified
United States
Local time: 15:20
English to French
+ ...
Agree with Łukasz Nov 12, 2013

However, I'm scratching my head: Is the document to be translated NOT the property of this direct customer? If that is the case, then I would run away. Fast.

If it is their own document, what is the fuss about?


Łukasz Gos-Furmankiewicz wrote:

Sarah, translators are authors too. 'Composition' is a generic word to describe a copyrighted work. No problem with that.

On the other hand, like Irena says, you shouldn't be responsible for any sort of consents, permissions licences etc... unless you outsource your translation, in which case it makes sense. But I wouldn't sign any such clause without adding a very clearly worded disclaimer that I had no responsibility for anything to do with the copyright of the original document.

Be careful, as I've heard of at least one court case lost by a translator allegedly duped into signing that kind of clause, then failing to get the original author's permission.

Also, direct end clients don't need non-competes, and nobody should be entitled to an unlimited number of preferential rewrites. In fact, personally, I'm pretty much an opponent of any preferential edits in translation because that's basically not our job. Our job is to translate, not to please somebody by using his favourite structures and words within one single language or by following his direction like a typist.


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Sarah McDowell  Identity Verified
Canada
Local time: 14:20
Member (2012)
Russian to English
+ ...
TOPIC STARTER
Thanks for your advice Lukasz and all Nov 14, 2013

Thank you everyone for your advice. I thought about sending the client an alternative agreement but they said that they need the contract to be signed before they can use any literary work that may be done by me. For example, they are going to do a voice-over of the text and apparently the agreement needs to be in place before they can do this.

Does this make sense to anyone else? I am having trouble understanding why such an agreement should be in place in order to do voice-over.

I also need some help understanding the meaning of "revoked" as it relates to translation.

In the section of the contract about "The Author's Warranties" there is a point that says:
"The Composition is not revoked and will not be revoked by the Author."

Also, " The Customer is released from payment of any fees to third parties in using the Compositions in any way or in any form." Is such a point typical in these kind of contracts? What kind of 3rd parties are they referring to here? I am not sure why this is even necessary in a contract. The part about Author's Warranties goes on to say that any claims lodged by 3rd parties connected to exclusive rights of the Customer to use the Compositions shall be compensated in full by the Author (in other words "the translator").

The part that I thought was a non-compete clause is actually a three-year confidentiality agreement (three years after the end of the contract even). It says that neither of the parties shall disclose any kind of information (including the contract itself) to third parties. So if I consult a lawyer would it be OK according to the contract? Is a lawyer considered to be a third party? Obviously I am going to need legal advice in order to proceed with this client.

There seems to be a slight hurry on their part to have the contract signed. They told me that they have a lawyer but he's going away on a holiday so they want to have everything in place before then.

Another area of concern is that the section on Responsibilities of the parties says that the Author must reimburse them for any damages caused in case of breach or warranties of the contract BUT it doesn't say that they should ever reimburse the author for anything. So it seems to be quite one-sided actually.

Finally, the section on the validity of the contract and cancellation of the contract states that "the Customer may terminate the Contract unilaterally in judicial order". I am not a lawyer but as far as I can see this seems unfair. If they can terminate the contract I should also be able to terminate it.

Sorry for such a long post but this contract is quite a difficult thing to deal with.

Does anyone have any advice for me? I understand that I will definitely need to consult a lawyer before proceeding with the agreement.

P.S. The customer's legal address is not where they are actually located. It's actually in a completely different country. Should this be a cause for concern at all? Or is it normal?

Thanks to those who take the time to read this post.

Sarah


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Łukasz Gos-Furmankiewicz  Identity Verified
Poland
Local time: 21:20
English to Polish
+ ...
The problem is that you don't know Nov 14, 2013

JL01 wrote:

However, I'm scratching my head: Is the document to be translated NOT the property of this direct customer? If that is the case, then I would run away. Fast.

If it is their own document, what is the fuss about?


Łukasz Gos-Furmankiewicz wrote:

Sarah, translators are authors too. 'Composition' is a generic word to describe a copyrighted work. No problem with that.

On the other hand, like Irena says, you shouldn't be responsible for any sort of consents, permissions licences etc... unless you outsource your translation, in which case it makes sense. But I wouldn't sign any such clause without adding a very clearly worded disclaimer that I had no responsibility for anything to do with the copyright of the original document.

Be careful, as I've heard of at least one court case lost by a translator allegedly duped into signing that kind of clause, then failing to get the original author's permission.

Also, direct end clients don't need non-competes, and nobody should be entitled to an unlimited number of preferential rewrites. In fact, personally, I'm pretty much an opponent of any preferential edits in translation because that's basically not our job. Our job is to translate, not to please somebody by using his favourite structures and words within one single language or by following his direction like a typist.


The fact that the signing translator doesn't know but is inclined, humanly, to make some presumptions of reasonability and good faith is his potential downfall. I've heard of a case lost before Polish courts a couple of years ago on the basis of a clause shifting responsibility for copyrights on the translator. I don't know the specifics, though, so it's not 100% sure that no significant context info is missing, unfortunately.


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Łukasz Gos-Furmankiewicz  Identity Verified
Poland
Local time: 21:20
English to Polish
+ ...
... Nov 14, 2013

Sarah McDowell wrote:

I also need some help understanding the meaning of "revoked" as it relates to translation.


Revoked as in going back on a grant of licence. It's just nonstandard legalese.

Also, " The Customer is released from payment of any fees to third parties in using the Compositions in any way or in any form." Is such a point typical in these kind of contracts?


Sounds like the civil-law wording of a hold harmless clause. It's English, but it's not common law, so it sounds exotic to you.

What kind of 3rd parties are they referring to here?


No idea, but whatever the drafter intends is an elusive issue. What matters in practice is what the court is going to end up construing as the intention of the parties.

The part about Author's Warranties goes on to say that any claims lodged by 3rd parties connected to exclusive rights of the Customer to use the Compositions shall be compensated in full by the Author (in other words "the translator").


Basically full indemnity with regard to anything that interferes with whatever they're gonna end up doing with your translation.

So if I consult a lawyer would it be OK according to the contract? Is a lawyer considered to be a third party? Obviously I am going to need legal advice in order to proceed with this client.


I can't imagine a lawyer being successfully excluded in a court's eyes from that, although you never know what some strange court in some strange jurisdiction is going to come up with on a bad day. Things happen.

There seems to be a slight hurry on their part to have the contract signed. They told me that they have a lawyer but he's going away on a holiday so they want to have everything in place before then.


The excuse sounds valid, but hurrying to sign would normally be a red flag. I'd probably stall to avoid regretting it later.

Another area of concern is that the section on Responsibilities of the parties says that the Author must reimburse them for any damages caused in case of breach or warranties of the contract


That's hold harmless ct'd.

BUT it doesn't say that they should ever reimburse the author for anything.


Yes, and whether they want you to deal with the original author or not, they have no business being cryptic about it. Don't sign anything until they oblige themselves to deal with the author and put it in writing in no ambiguous terms that it's their own sole responsibility. If they won't, it means they want someone else to be responsible for their own actions and from such 'business partners' I'd definitely run.

Finally, the section on the validity of the contract and cancellation of the contract states that "the Customer may terminate the Contract unilaterally in judicial order". I am not a lawyer but as far as I can see this seems unfair. If they can terminate the contract I should also be able to terminate it.


That's basically another 'we own you' that marks the contract as their territory, but I have no idea whatever they mean by themselves 'terminating the contract in judicial order'. If it involves a judge, it isn't done by them. If it doesn't involve a judge, it isn't judicial. But some jurisdictions are weirder that others.

Does anyone have any advice for me? I understand that I will definitely need to consult a lawyer before proceeding with the agreement.


Confront them on the harsh terms and the insulting one-sidedness of the contract. Force them to tell you in black and white terms what they want to do about the original author's rights.

And probably insist on cutting out those broad indemnities on principle. You don't need to be their insurer. Just shame them and tell them to get a real insurance policy and tell them you don't have the deep pockets anyway.

P.S. The customer's legal address is not where they are actually located. It's actually in a completely different country. Should this be a cause for concern at all? Or is it normal?


Yes, that's a problem because addresses have everything to do with jurisdiction. And jurisdiction in dealing with multinationals is a pain. You need very clear wording on law and courts in the contract, and they should contract with you nationally without the advantage of a customised multinational legal framework.

***

Seriously, it's going to become impossible to work as a translator if contracts don't get any better.

[Edited at 2013-11-15 02:09 GMT]


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Phil Hand  Identity Verified
China
Local time: 03:20
Chinese to English
Don't think 3.1.6 is a problem Nov 15, 2013

You wouldn't be infringing a copyright if it's given to you; and if it's the client's document, then you are automatically entering into an agreement with the owner of the copyright when they ask you to translate.

So I don't think that's a major issue.

But... it's just another lawyer-drafted, off-the-peg agreement that doesn't acknowledge the reality of the relationship with a translator. The company hasn't actually thought about what it says, so it's not like they're consciously trying to screw you over, and there would probably be no problem... until there is. Until one day they get caught out in an error, and then some enterprising guy in Legal realises, Aha! Oho! We can blame it all on the translator...

If you have a contract format of your own, or have seen contracts from other clients that make more sense, suggest using that contract instead. You're entering into an equal partnership, and you have just as much right to propose the form of the contract as they do. Seriously - lawyers recycle clauses from other contracts all the time. It's a decent way to draft. Find one that you like, give it to them, and say, let's sign this instead. At the very least you might get them to engage properly with the issue.


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Sarah McDowell  Identity Verified
Canada
Local time: 14:20
Member (2012)
Russian to English
+ ...
TOPIC STARTER
Conclusion of story Jan 9, 2014

Hi everyone,

I just wanted to post an update to say that everything was resolved with this Agreement.

The client made changes to the Agreement and I suggested some changes to it. To make a long story short, several rounds of changes were made and a long exchange of e-mails was involved.

The Agreement was changed to say "Translator" wherever it said "Author" in the original. Many other changes were made as well. I think they were just using one that they usually sent to Authors and didn't realize that it needed to be changed for translators. At some point they realized that it was necessary to make a lot of changes. The final version of the Agreement is something that both the client and I are pleased with.

Best wishes for 2014 to everyone!

Sarah



[Edited at 2014-01-09 07:04 GMT]


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