questionable conditions for translating a literary work
Thread poster: Bernhard Sulzer

Bernhard Sulzer  Identity Verified
United States
Local time: 20:32
English to German
+ ...
Aug 5, 2007

Dear Colleagues,

Very recently I came across a job posting which defined the job as "'work-for-hire'" project and subject to US copyright laws.
The text is a literary text (short story/3000 words) by a very famous German writer of the early 20th century, to be translated into English, and would supposedly be the first of a total of 13 jobs. The poster indicated also he would prefer to work with one translator.
Is "work-for-hire" a euphemism for "just translate for nickles" and let us keep the copyright on the translation (which, technically, I think should not be possible because of copyright laws), then sell the work and keep all the profits?

If so, why would/should anybody want to do the job or why should it be considered a legitimate and legally sound offer?

And how can we as translators prevent any abuse of our work, especially in the literary field?

PS: also, they were asking for a flat-fee quote.

Thank you for your input!

[Edited at 2007-08-05 20:00]


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Patricia Rosas  Identity Verified
United States
Local time: 17:32
Spanish to English
+ ...
work-for-hire rules Aug 5, 2007

Right or wrong, this is apparently common practice. I found this in Wikipedia http://en.wikipedia.org/wiki/Work_for_hire

***************************
A work made for hire (sometimes abbreviated to work for hire) is an exception to the general rule that the person who actually creates a work is the legally-recognized author of that work. According to copyright law in most countries, if a work is "made for hire", the employer—not the employee—is considered the legal author. In some countries, this is known as corporate authorship. The employer may be a corporation or an individual.

Works Made for Hire. -- (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, ***as a translation, *** as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. 17 U.S.C. sec 101

*************************************

I believe it was in an issue of the ATA's Chronicle that I read about the translators of Harry Potter who had to translate those books (with all their crazy, made-up words) unbelievably rapidly and for very little money.

I don't know what solution there can be as long as talented people are needy and find themselves in the position of selling their work cheaply. It would be lovely if one of us could come up with a solution...


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Henry Hinds  Identity Verified
United States
Local time: 18:32
English to Spanish
+ ...
No problem Aug 5, 2007

I see no problem as long as you get a decent fee for your work. Once you do it and get paid, it is theirs.

You've made your money; now let them try to sell it.


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Kim Metzger  Identity Verified
Mexico
Local time: 19:32
German to English
Translator's rights Aug 5, 2007

Hi, Bernhard - I'm not an expert in these matters, but I found some articles that you may find helpful.

"It is common knowledge that authors have the right to protect their work against other people using it and profiting from it. What is less known to the public in general is that translators hold the copyright to the work they produce. This means that if I translate a novel, for example, nobody can make any commercial use of the text without my permission, and if anyone has the opportunity of deriving any profit from this use, I have a right to a share in this profit, and this right is protected and guaranteed by law. Copyright laws are reasonably similar in most western countries, since they are generally derived from international conventions such as the Bern Convention for the Protection of Literary and Artistic Works, signed in 1886."

http://accurapid.com/journal/33copyright.htm

Das neue EU-Urheberrecht, das seit Juli 2001 gilt, sieht vor, dass sowohl Pauschalhonorar als auch Nebenrechtsbeteiligung sowie Beteiligung am Verkaufserfolg gewährt werden. Von der Umsetzung dieses neuen Urheberrechts ist man aber noch weit entfernt. Es wird noch einige Jahre dauern, bis vielleicht mehr Leute überhaupt und besser von dieser hochkomplizierten, hochkomplexen und wunderbaren Arbeit leben können.
http://linguapolis.hu-berlin.de/germanopolis/erfahrungsberichte/631.html

Blackwell's policy
1.15 What about translations?
Let's say, for example, that you have published an Article in Spanish by Palabra Publications. You have translated the Article yourself (or by employing a translator) and want to submit the English translation to a Blackwell journal, say Journal of Indelible Research.
In order to make the translation, you must first approach Palabra for permission to translate the Article for republication. The translation itself would then be held under separate copyright - by you or the translator. You would then be able to sign the Journal of Indelible Research Copyright Assignment or Exclusive Licence Form for the translation, rather than the original Article.

http://www.blackwellpublishing.com/bauthor/faqs_copyright.asp


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Patricia Rosas  Identity Verified
United States
Local time: 17:32
Spanish to English
+ ...
literaray translations Aug 5, 2007

Henry Hinds wrote:

I see no problem as long as you get a decent fee for your work. Once you do it and get paid, it is theirs.

You've made your money; now let them try to sell it.



The catch, of course, is getting the decent fee! But I agree with you, Henry, that the publisher has to sell the work, and from what I've seen working in the industry, the publisher may make very little and the royalities could be nil.

Literature, in general, is created out of dedication to an art and not for commercial purposes. So, I suppose another way of answering Bernhard's question is to suggest that he take up translating computer manuals and tourist brochures (just kidding, Bernhard!).


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Vladimir Dubisskiy  Identity Verified
United States
Local time: 19:32
Member (2001)
English to Russian
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they have a remedy Aug 5, 2007

What you found is true, however they have a simple remedy:

Translator shall sign a contract surrending 'all and every' right - the wording can be different but the essence is ther same - for the translation to the client (who simply pays translator for her/his work done).
As far as I understand this is a common practice as well.

Kim Metzger wrote:
What is less known to the public in general is that translators hold the copyright to the work they produce. This means that if I translate a novel, for example, nobody can make any commercial use of the text without my permission, and if anyone has the opportunity of deriving any profit from this use, I have a right to a share in this profit, and this right is protected and guaranteed by law.


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Bernhard Sulzer  Identity Verified
United States
Local time: 20:32
English to German
+ ...
TOPIC STARTER
a translation of a literary work should not be a "work for hire" Aug 5, 2007

Thank you already for your replies.

I think even though art for art's sake is a noble approach, it does not pay the bills, and does not recognize how art and artistic work should be compensated. And I would certainly not put such work (translation of a major literary text) in the same category as computer manuals or brochures but I know you made that distinction, Patricia).
I think, especially in this context, a translator should never "sell himself or herself short," especially if there is the slightest chance that his/her work is later commercially exploited. With film, the internet, merchandise, etc. there are millions of ways to profit from a translator's work. (The Potter files? Or many other examples?!)

I dug a little and found my thinking confirmed in the first link below.

I. Such translation does N O T! have to be considered a "work for hire." I 'd say "should not be" considered as such by translators and their "employers" whoever those are: a publisher, a translation agency, the original author, etc.

If you read more about this using the link below, you will see that it has indeed been common practice to treat such translations as "work for hire" which means the translator's recognition and rights are "nil."

It does not have to be this way. I would follow some of the suggestions made below.

The second link (regarding the European situation) makes the point, among others, that a publisher should not be too worried about paying royalties to the translator because these would only be paid if the book sells well. A very good point indeed.

And it also suggests that "the practice of assigning the translator's copyright to the publisher outright *should be long outdated by now* throughout western Europe;

II. To me this certainly means we're on the wrong track if we give in to "common practice" and "the way things are".

I think this is a very important issue and hope you share some more of your opinions!

Thank you!

http://www.pen.org/page.php/prmID/322

Pen American Center
A translator's Model Contract

Only 15 to 20 years ago, it was almost the exclusive practice of publishers to engage translators as "employees of a work made for hire"—a legal phrase that meant translators were given a one-time flat fee for their efforts and had no further interest in, or control over, their translations. A Supreme Court case decided in 1989 emphasized that while translations might be considered "works for hire" under the copyright law, they *need not be*: a translator of a work may be deemed an author in his or her own right, may receive further payment over the life of the copyright, and may have a degree of control over the future uses of the work. Indeed, even if a translation is considered a work for hire, a publisher may grant the translator an ongoing share of the income in one form or another, not excluding a royalty on all copies sold and a percentage of subsidiary rights income. Accordingly, the Model Contract now presents paragraphs for negotiating a translator's contract on either an authorial or work-for-hire basis.


http://www.coe.int/t/e/cultural_co-operation/culture/completed_projects/books/eculiv_96dallatorre.asp

Council of Europe - The Translators' Perspective

3.4 Subsequent and subsidiary exploitation

For every use different from the primary one - that is to say, for every subsequent and subsidiary exploitation of the translation (newspaper and magazine serializations, radio and TV dramatizations, radio and TV readings, sound and video recordings, micro-photographic recordings, strip cartoons, digests, extract reproductions, paperback editions, book club editions) - the publisher should give the translator the copyright percentage stated in the contract, independently from the royalties established for the primary exploitation. Royalty percentages for subsidiary exploitations of a translation are particularly significant in the modern world, where technology creates new possible ways of exploiting a translation, for example, mass photocopies and electronic publishing.

The translator's right to royalty percentages (both on the primary and on the subsequent and subsidiary uses of a translation) is stated by:

(i) the Unesco Nairobi Recommendation of 1976: III,5 - "A contract governing relations between a translator and a user... should... remunerate him or her in proportion to the proceeds of the sale or use of the translation with payment of an advance, the said advance being retained by the translator whatever the proceeds may be";

(ii) the 1994 Strasbourg Recommendation by the Council of Europe: "translators are authors and, in that capacity...they must enjoy...all their rights...particularly essential is ...remuneration which reflects both the specific nature of the translated work and its commercial future";

(iii) it is strongly reaffirmed in the ten General Principles recommended by the Conseil Européen des Associations de Traducteurs Littéraires (Amsterdam, 1994): "Royalties should be paid in the event of sales passing a trigger, to be specified in the contract. Payment for all subsidiary exploitation of the translation";

(iv) in the Guidelines for the Licensing of Translation Rights by the European Writers' Congress, Vienna, 1995: "The royalty on foreign language editions should be... divided between the original author and the translator".

It must be emphasised that granting royalty percentages both on the primary and on the subsequent exploitations of a translation is fair, because it acknowledges, in practical terms, the translator's role in the success of a book. Moreover, publishers should not be worried about the additional expense, because that extra expense would occur only in conjunction with extra profits, that is to say if the book sells particularly well. If a book sells well, it is obvious that all the agents in the 'book chain' have worked well, the translator included. So, like the author and the publisher, the translator, who is responsible for the quality of the new version of the original text - the one that the national reading public gets to know - should share in the financial success of the book. This right is acknowledged, in practice, in most western European countries. See:

(i) Clauses 7 and 10 of the English Specimen Translator-Publisher Agreement;
(ii) Point 2 of Publisher's Obligations in the Faber and Faber Memorandum of Agreement;
(iii) Clause 11 of the Dutch Model Agreement;
(iv) Clause 3 of the Spanish Contrato Mixto aplicado a la traduccion;
(v) Point 6 of the French "Code des Usages".

The practice of assigning the translator's copyright to the publisher outright should be long outdated by now throughout western Europe; yet it still survives in a few countries, such as Italy and Greece, although this does not follow the European standards. The harmonization programme (Green Paper) promised by the EU Commission in 1991 should, through efficient directives, convince even the European countries which still resist the idea of actually treating translators as authors, not simply as the providers of a service, to behave in keeping with the rest of Europe.

add-on from the Model Contract Link:
http://www.pen.org/page.php/prmID/322
The Model Contract and explanatory notes are based on the premise that the work in question is a work in copyright. For the translation of works in the public domain, the Committee feels that the translator should be treated as an author and should receive the same contractual terms and rights as would an author.

[Edited at 2007-08-05 21:42]


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Kim Metzger  Identity Verified
Mexico
Local time: 19:32
German to English
Negotiating better terms Aug 5, 2007

Right, Bernhard, you can try to negotiate better terms and should. As you said, it's not just about one 3,000-word short story but 12 more jobs to follow.

That said, I'd give my right arm to be given the chance to translate some short stories by a famous German author. It would be the pinnacle of my career as a translator. The contracts, business letters and marketing texts put food on the table, but I could pass on to the other world feeling better about myself if I had accomplished what is for me the ultimate reward for a translator: publication of a good translation of a good work of literature.

"Work for Hire is similar to "All Rights," except that in this case, you have no claim to copyright at all. Most "work for hire" is done within the scope of employment, or when working for a commission. However, many publications also expect freelance writers to sign work-for-hire agreements. When you do this, you are transferring not just your rights but your actual copyright to the publication (or employer). You have no rights to the material, which can be altered, resold, published under another name, or used in any other fashion the publication desires, without additional compensation to you. Worse, if you write a somewhat modified version of the material to sell somewhere else, you might actually be guilty of "infringing" on the company's copyright, if the new piece is similar enough to the Work-For-Hire piece.
Obviously, it is in your best interest to avoid Work-For-Hire and All Rights agreements unless you have no other alternative!

http://www.writing-world.com/rights/rights.shtml


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Henry Hinds  Identity Verified
United States
Local time: 18:32
English to Spanish
+ ...
Just my Fee Please Aug 6, 2007

I would not care how many or how few it sold, and the fact is, I would have no direct knowledge of such numbers and could therefore be cheated if my pay were to depend on such numbers.

All deals depend on how they are agreed, and mine would be "pay me so much and it is yours". Afterwards I have nothing to lose; I have my part.


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Bernhard Sulzer  Identity Verified
United States
Local time: 20:32
English to German
+ ...
TOPIC STARTER
translators as authors deserve royalties and recognition Aug 6, 2007

Henry Hinds wrote:

I would not care how many or how few it sold, and the fact is, I would have no direct knowledge of such numbers and could therefore be cheated if my pay were to depend on such numbers.

All deals depend on how they are agreed, and mine would be "pay me so much and it is yours". Afterwards I have nothing to lose; I have my part.


Just a few thoughts: would you feel the same way if you were an author creating a great novel? Would you give it to a publisher for a flat fee and then feel you have nothing to lose? Would you even consider writing a novel under those conditions?
Trying to translate an artistic work is also an artistic challenge and activity. Wouldn't you agree?

A contract can specify how much royalties (a percentage of the sales for example) must be paid to the translator. I would include that the translator must of course be able to have knowledge/be informed of the sales and profits of the translation. If somebody then tries to cheat you out of money, you would have legal recourse.
I wouldn't accept "nil" rights, my name not even being mentioned and no money from profits due to my literary, artistic translation.
If you don't care, don't you think it could play into the hands of greedy publishers and what would this mean for the translator community? What about the guidelines laid down in the links I quoted?

Bernhard

Just my thoughts.

[Edited at 2007-08-07 04:13]


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Bernhard Sulzer  Identity Verified
United States
Local time: 20:32
English to German
+ ...
TOPIC STARTER
copyright for translators as authors Aug 8, 2007

One might argue that translators of literary texts do not have to be "artists" in their own right to be able to translate such texts, but they are certainly authors of a completely new version of the original text, namely, in a different language.
With the existence of this text, and in particular with literary texts which are subject to publication and further use/further (possibly large) profits based on that translation, a translator should always retain the copyright to his/her translation.
That should be the goal.

Your thoughts?

Bernhard


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