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Does the translator own the copyright?
Thread poster: Jennifer Forbes

Jennifer Forbes  Identity Verified
Local time: 21:05
Member (2006)
French to English
+ ...
Nov 5

In early August this year I translated a children's story and related educational material from Spanish to English for a small publishing company in Valencia. I'd worked for this publisher before, in February this year, without any payment or other problems.
The publisher said she was delighted with my work. My invoices were due for payment by 30th September but I still haven't been paid. I sent a reminder and the publisher replied that the publication of the English version (translated by me) had been delayed but that she would be paying me on 26th October.
I have received no payment and it's now 5th November. The publisher did not answer my payment reminder of last week.
I've now discovered from the publisher's website that the English version of the book has been published and is offered for sale ("add to cart").
My questions are: Do I own the copyright to my translation? Is it legal for the publisher to publish my translation without paying me? Almost certainly not, I'd think.
Any information and advice will be gratefully received.


Tom in London
Nikki Scott-Despaigne
Njanja
 

Tom in London
United Kingdom
Local time: 21:05
Member (2008)
Italian to English
Time to get heavy Nov 5

It irks me when I hear of a colleague who hasn't been paid.

In this case, I'd say it's time to take off the gloves. You need to be paid. Never mind the copyright.

In the past, I've found that the mere act of beginning a discussion in these forums can persuade non-payers (who read them) that they really ought to cough up.

For example: you could ask for Spanish colleagues to suggest a good debt recovery agency, or a lawyer, based in Valencia, if possible close to the postal address of the publishing company, and asking these colleagues to contact you privately with their suggestions.

You may find that payment miraculously arrives into your bank account.

[Edited at 2018-11-05 11:50 GMT]


Yolanda Broad
 

Jennifer Forbes  Identity Verified
Local time: 21:05
Member (2006)
French to English
+ ...
TOPIC STARTER
Debt collector in Valencia? Nov 5

Thanks, Tom.
I hereby take up your suggestion.

Can any colleagues recommend a debt-collector or abogado in or near Valencia who could help me recover the funds due to me?

Please contact me privately if you have any ideas and thank you in advance.


 

Sheila Wilson  Identity Verified
Spain
Local time: 21:05
Member (2007)
English
+ ...
Copyright is a grey area; right to payment is B&W Nov 5

I've never heard anyone who's in a position to know actually give a clear answer on copyright of translations. We tend to assume it's ours until we've been paid, as that seems fair. I've certainly boldly stated that to clients in the past, but I'm not sure if it would have held up in court. It worked well when I actually used it with an end client, as payment from my client hit my account the next day, but it was a highly unpleasant experience that I wouldn't wish on anyone. Very much a last resort.

But your right to payment for your work is black and white, and why lose 30-odd percent to a debt recovery company? It doesn't sound as though your client is a "can't pay" one. It doesn't even sound as though it's a "won't pay" one. It's "just" a "don't want to pay just yet" one. I'm pretty sure they'll cave in as soon as they're presented with screenshots of the cart, a mention of copyright, and your regret at the huge embarrassment they'd feel if you had to get a lawyer to contact the end client to demand they remove the book from sale.

If you're in the UK, Jenny, another avenue is to raise an EU Payment Order. You'll be given the choice of English or Spanish and you just fill it all in as best you can. I found it confusing, to say the least, as it's designed for people with far more complex scenarios, but there's a fair amount of help around. I chose to store it as a PDF rather than go straight to submission, then sent it to my client. It worked a treat so I never got to submit it (I imagine the PDF is still on the EU site). It shows you mean business and, as it only costs around €30-40 to file the claim, clients realise that there's only bigger trouble and bigger bills up ahead. Of course, Brexit will probably mean that freelancers based in the UK will no longer be able to make use of the EU Payment Order icon_frown.gif.


Yolanda Broad
B D Finch
 

ph-b
France
Local time: 22:05
English to French
+ ...
Your translation is yours until your client pays what they owe you. Nov 5

Jennifer Forbes wrote:

My questions are: Do I own the copyright to my translation? Is it legal for the publisher to publish my translation without paying me? Almost certainly not, I'd think.
Any information and advice will be gratefully received.


Your professional organization should be able to answer these questions.

For information, the French SFT recommends that we include this sentence in our General Terms and Conditions : La traduction reste la propriété du traducteur jusqu’au paiement complet.
https://www.sft.fr/cgps-de-traduction-sft.html#.W-A91ZNKiUk

I can't imagine that your clients may publish something that they do not own and have not been allowed to publish.

(Sent on 05.11.2018 at 2.18pm - just because it took almost three days for my last post to get published...)

[Edited at 2018-11-05 13:24 GMT]


Chris S
 

Eliza Hall
United States
Local time: 16:05
Member (Aug 2018)
French to English
+ ...
Get a debt collector... meanwhile, copyright Nov 5

Who owns the translation depends on the terms of your contract and local law. Here's how it generally works:

1 The author owns the copyright of the work in its original language, and that includes the right to do translations.

2a The author licenses the right to translate into X language to a translator, or to a translation company

OR

2b The author assigns or licenses the copyright to a publisher for publication in the original language, and that license or assignment includes translation rights. So then the publisher licenses the right to translate into X language to a translator or translation company.

3a The translator, being duly licensed by the author (or publisher), owns the copyright in the translation -- unless the terms of the license dictate that the translation is "work made for hire" (see link) or otherwise states that in exchange for the right to be paid to do the translation, the translator assigns copyright in the translation back to the author (so read any contracts you received to see what they say). Note that in some jurisdictions, such as the US, the work of freelancers cannot be work for hire unless there is a written contract in place before the freelancer starts working, and that contract says the work is for hire, and certain other conditions are met. In those jurisdictions, if there's no written contract, the translator owns the copyright.

OR

3b if the author licensed a translation company and the translation company then hired a translator, the same is true: the translator owns the copyright unless the contract with the translation company says it was work for hire or the copyright is assigned back to the translation company.

Work for hire (a.k.a. work made for hire) in the US: https://en.wikipedia.org/wiki/Work_for_hire

Work for hire in the UK: https://www.gov.uk/guidance/ownership-of-copyright-works

Other work for hire: google it, but FYI some countries don't have this concept at all (e.g. Germany and Greece: a business cannot be considered the author of a copyrighted work, so the translator owns the copyright unless there's a contract stating that she transfers the copyright to the translation company).


 

Jo Macdonald  Identity Verified
Spain
Local time: 14:05
Member (2005)
Italian to English
+ ...
Copyright and property Nov 5

Imo a translator holds the copyright to a translation they have written unless they've signed their rights away in some dodgy contract, and you own the translation until it's been bought by someone else just as if you went into a book shop and bought a book; it's the books shop owner's until you pay for it, then it's yours, doesn't matter if the copyright is held by the author.

So copyright aside, if they're selling-on something that is yours because they haven't paid you for it, that's misappropriation of property imo which is a criminal offence punishable by jail time in most countries. As far as I know it's actually worse than theft because you're not just stealing something but also making money out of it by selling it on to someone else who probably doesn't know it's not your property to sell.

A swift kick up the backside (Email) to said effect with a short, sharp reminder you're going to add negative feedback on the BB and contact the relevant authorities to report the misappropriation and sale of your property might just get you paid, then they can legally sell the book.


[Edited at 2018-11-05 14:50 GMT]


 

Eliza Hall
United States
Local time: 16:05
Member (Aug 2018)
French to English
+ ...
Corrections Nov 5

Jo Macdonald wrote:

Imo a translator holds the copyright...


IMO, the term "IMO" is not a valid basis for a legal opinion, at least not unless you're a lawyer and your opinion is based on the law.icon_wink.gif

Jo Macdonald wrote:
...to a translation they have written unless they've signed their rights away in some dodgy contract, and you own the translation until it's been bought by someone else just as if you went into a book shop and bought a book; it's the books shop owner's until you pay for it, then it's yours


If you're doing a licensed (legal) translation, there should be a written contract in place stating who owns the translation. If it says the licensor (author, translation company, publisher) owns it, then you, the translator, don't own it. In a jurisdiction with work-made-for-hire laws, you might never own it; it's automatically the licensor's. In a jurisdiction without such laws, technically you own it upon creation but the contract may provide that you assign (transfer) it in advance to the licensor -- so again, you never actually own it.

If the contract doesn't say anything about that, or if there's no written contract, then who owns it depends on local copyright law.

Jo Macdonald wrote:
doesn't matter if the copyright is held by the author.


It does matter. Apart from public domain works (e.g. the novels of Jane Austen, the essays of Montaigne, the poems of Baudelaire... old stuff, in other words), nobody has the right to translate anything without the permission of the author.

If the work is still under copyright -- so, generally speaking, if the author is still alive or died less than 70 years ago -- you cannot legally translate the work. You could translate excerpts in a translation class at university (there are exceptions for educational use), but you couldn't do anything with that translation. That is, you couldn't even legally post it on your website, much less publish it as a book.

Jo Macdonald wrote:
that's misappropriation of property imo which is a criminal offence punishable by jail time in most countries.


Misappropriation of intellectual property is not generally a criminal offense. No jail time, just monetary damages and injunctions (court orders to do or not do something).


[Edited at 2018-11-05 15:52 GMT]


Yolanda Broad
Jo Macdonald
paula13
Christiane Allen
B D Finch
 

Jennifer Forbes  Identity Verified
Local time: 21:05
Member (2006)
French to English
+ ...
TOPIC STARTER
Thank you Nov 5

My thanks to all who have contributed.
As Sheila says, opinions seem to differ as to who holds the copyright to translated works. Others rightly say that it all depends on the contract the translator has with the client and/or that copyright law varies from one country to another.
In my particular case there was no contract, as such, other than the usual emails offering, accepting and discussing the work and agreeing the terms of business, which I believe are valid as a contract. I have kept all the emails we exchanged on the subject.
I'll try telephoning the publisher tomorrow morning but have misgivings because when I telephoned them last week during office hours there was no reply.
I'll let you know what, if anything, happens.


Walter Landesman
 

Jo Macdonald  Identity Verified
Spain
Local time: 14:05
Member (2005)
Italian to English
+ ...
Thanks Eliza Nov 6

Eliza Hall wrote:

Jo Macdonald wrote:
unless they've signed their rights away in some dodgy contract


technically you own it upon creation



 

paula13  Identity Verified
Argentina
Local time: 18:05
Member (2005)
Further corrections Nov 6

In addition to what fellow lawyer/translator Eliza Hall already clarified above, with which I wholeheartedly agree, I would add a couple of further clarifications.

1. Work-for-hire applies mostly to Common Law countries, particularly the U.S. It's not the international standard.

2. In addition to domestic copyright law, most Civil Law countries have adopted the Berne Convention.

Under Berne, translation is a derivative work and copyright is licensed not sold. You need permission from the copyright holder, not the necessarily the author to translate something. And you have moral rights over your work.

3. Most Civil Law countries have standards that go beyond Berne when recognizing moral rights, even to derivative work.

With regards to Jennifer's particular question:

Copyright law varies significantly from one country to another (and even from one jurisdiction to another within the same country). Although in some countries, threatening with a copyright infringement suit will expedite payment, in others that strategy may fail and you'd be better off hiring a debt collector. In fact, the law may provide more effective alternatives in your country. So talk to a lawyer in your jurisdiction and have that person review your contract and advice you on your best available options.


Angie Garbarino
 

Njanja
Serbia
English to Serbian
intellectual property Nov 6

Your translation is your intellectual property. You can, of course, sign a bad contract, and transfer the ownership of your translation to the publisher (for a number of years, or forever). But, if you signed a regular, honest contract which does not stipulate the transfer of ownership of your intellectual property (your translation), and which contains a clause of a contract that specifies the amount of your fee and the payment deadline, then you can sue the publisher.
If, however, you did not sign such (or any) contract, then, I'm afraid, you depend on the good will (or the common decency) of the publisher.
Best regards,
Njanja


Victoria Fushchich
 

Jennifer Forbes  Identity Verified
Local time: 21:05
Member (2006)
French to English
+ ...
TOPIC STARTER
The outlook doesn't look good Nov 7

Thanks again, everyone. Yes, it looks as if using a debt collector will be my only hope.
This isn't really about whether or not I own the copyright to my translation of the book now being offered for sale on the publisher's website. It's about my wish to be paid the fee now long overdue to me for the work I did in early August this year, based on my agreed and normal per-word rate.
I have now sent further emails to the client to which she has not replied. In my email of yesterday I said that if I didn't receive payment by Friday of this week I would have no remedy other than to make a bad entry on her Blue Board record and initiate legal action to have the translated book removed from her website list of books for sale. No reply and no payment.
Perhaps she doesn't read the Blue Board - although she first contacted me through Proz in February of this year.
I have three telephone numbers for this client, two for the publishing house and one the lady's home number. I have rung her home number. No reply. I have rung the business numbers several times during Spanish opening hours. No reply. Perhaps they have done a flit?
So, I'd be grateful to any Prozians who can recommend a debt collector who specialises in collecting debts from companies in Spain for a creditor in the UK.


 

Eliza Hall
United States
Local time: 16:05
Member (Aug 2018)
French to English
+ ...
Unclear why we should want to forever retain copyright in business/medical/etc. translations Nov 7

Njanja wrote:

Your translation is your intellectual property. You can, of course, sign a bad contract, and transfer the ownership of your translation to the publisher (for a number of years, or forever). But, if you signed a regular, honest contract which does not stipulate the transfer of ownership of your intellectual property (your translation)


There's nothing dishonest, irregular or bad about a contract under which you assign (transfer/sell) your copyright in a business or scholarly translation to the client. That's completely normal and I'm not even sure why you would want to retain copyright. What's the point of owning the copyright on a translation of a travel website or a business brochure or someone's medical records? As long as the contract says that your copyright assignment is only effective upon receipt of payment -- in other words, you own the copyright until they pay you -- that seems perfectly proper to me.

The only situation where transferring it would seem strange to me, and you should perhaps be licensing it to them instead, is a literary translation. In other words, a translation that likely involves some creative choices and imagination on your part. But that's not what most of us are doing most of the time.


paula13
B D Finch
 

Eliza Hall
United States
Local time: 16:05
Member (Aug 2018)
French to English
+ ...
Berne, etc. Nov 7

paula13 wrote:

In addition to what fellow lawyer/translator Eliza Hall already clarified above, with which I wholeheartedly agree, I would add a couple of further clarifications.

1. Work-for-hire applies mostly to Common Law countries, particularly the U.S. It's not the international standard.


True, but in practice there's not as big a difference as one might think. For freelancers the US, UK, Australia and Japan initially vest ownership in the contractor unless there's a contract saying otherwise (i.e. a work for hire contract). Laws on freelancer work are what typically matters for us as translators, but for employees who create intellectual property as part of their employment, the concept of automatic copyright ownership by the employer is much more widespread than just the work-for-hire countries mentioned above. And even if it's not considered work for hire, or the work-for-hire doctrine doesn't exist in your country, freelancers can sign contracts that transfer copyright to the commissioning party (client).

paula13 wrote:
Under Berne, translation is a derivative work and copyright is licensed not sold. You need permission from the copyright holder, not the necessarily the author to translate something. And you have moral rights over your work.


Translation is a derivative work by definition (it's a new work derived from an older work). Berne doesn't provide that copyrights are licensed and not sold. Here's a summary of Berne -- this sets forth the rules that member countries have to implement in their own domestic copyright laws: http://www.wipo.int/treaties/en/ip/berne/summary_berne.html

paula13 wrote:
3. Most Civil Law countries have standards that go beyond Berne when recognizing moral rights, even to derivative work.


True. The US sucks at moral rights.

In case anyone's interested, here's a detailed overview of US copyright law (including its adoption of Berne): https://www.finnegan.com/en/insights/copyright-law-for-business-people-a-handy-guide.html


paula13
 
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