Can an agency and their client use any part of a translation that they rejected and did not pay for?
Thread poster: Fumizuki Huyo

Fumizuki Huyo
Local time: 13:38
English to Japanese
+ ...
Apr 7, 2013

Recently I have had an unpleasant experience with a rejected translation and would like some advice.

My work was rejected by the client saying that they found quite a few grammatical errors. They also said that the text did not sound as if it was translated by a native speaker of the target language.

Naturally I asked the client to point out the grammar mistakes that they found, and which part of my translation did not sound natural. I also asked the crowdsourcing agency where I picked up this job to review my translation.

Although the first response from the agency was quick and they promised to review my work, I had not heard from them for more than 3 weeks so I sent another email to remind them of my request.

But the reasons for rejection from the agency were again unspecific. Apparently there were some errors in my article usage, and the translation did not sound natural, was all they said. Then they commented that they hoped I would apply this experience to better improve my translation skills and move forward.

I would certainly appreciate feedback since I am fairly new to the industry, but what concerns me is that the agency actually used a good deal of my work in their final translation and delivered it to the client. I know this because they sent me a copy of their final translation and I have compared it to mine.

It appears to me that the original source text might have been extensively modified. I can see many parts that they newly translated do not relate to the text that I was originally given.

My questions are:

- Can the agency reject my translation work without stating specific examples of errors that they are concerned about, and not give me an opportunity to correct them?

- Do they have the right to use any part of my translation that they rejected and did not pay for?

I would be grateful if anyone could give me advice on these questions based on the industry standard.


 

Catherine Bolton  Identity Verified
Local time: 02:38
Italian to English
+ ...
I would write to them! Apr 7, 2013

You should tell them you've compared the two texts and that you should be paid at least in part for the sections they used verbatim.
It all sounds a bit fishy to me, to be honest.
Catherine


 

Nicole Schnell  Identity Verified
United States
Local time: 17:38
English to German
+ ...
No, they don't. Apr 7, 2013

Fumizuki Huyo wrote:

- Do they have the right to use any part of my translation that they rejected and did not pay for?


Until your translation work has been paid for in full, this work remains your property.


 

Sheila Wilson  Identity Verified
Spain
Local time: 01:38
Member (2007)
English
+ ...
Sounds fishy to me, too Apr 7, 2013

Catherine Bolton wrote:
You should tell them you've compared the two texts and that you should be paid at least in part for the sections they used verbatim.
It all sounds a bit fishy to me, to be honest.
Catherine

I don't think they can either reject it without adequate justification, nor can they use it if they haven't paid for it. I'm no lawyer, but the law is there to protect both parties, not just the bigger and stronger one.

I imagine you're talking about a translation into English here. In that case, it's highly likely that there were areas that were less than 100% perfect (no offence intended, Fumizuki). But they can't reject if out of hand, for 2 very good reasons:
1) They selected you for the job! If they chose the wrong person, that's their problem (as long as you were straight with them, of course)
2) They might have felt entitled to deduct the cost of a proofreader from your rate (though that's highly questionable, IMO), but that should be less than your rate.

Don't lie down and take it, Fumizuki, if you really think they're being unjust. There's too much of that going on.


 

Phil Hand  Identity Verified
China
Local time: 08:38
Chinese to English
Complain loudly Apr 7, 2013

It sounds like you've been ripped off. I agree with everyone above, you shouldn't take this lying down. Get in touch with them by email, phone and letter, and be extremely clear that you will not accept this kind of conduct.

Remember, often this sort of thing is caused by incompetence rather than malice. The client hadn't finalised the text, the agency allowed them to change it when they shouldn't have... and the result is you got cheated of your fees. If you can get through to the right people at the agency, and explain your position clearly (citing their own terms if you can), then you might well get a result.

Good luck!


 

Fumizuki Huyo
Local time: 13:38
English to Japanese
+ ...
TOPIC STARTER
I won't lie down! Apr 8, 2013

Thank you very much for your advice and comments.

Even though I am a newcomer to the industry, it is obvious to me that agencies should not use any part of a rejected, unpaid translation. Besides, this job should have been given to a different translator after they decided to reject my work, not to a proofreader. That’s what their rejection procedure stipulates. The fact that they completely ignored their own rules made me unsure. After reading your comments and advice, I am more confident to write back to the agency and seek payment for the parts of my work they have used.


 

Marie-Helene Dubois  Identity Verified
Spain
Local time: 02:38
Spanish to English
+ ...
Just an addendum Apr 9, 2013

there's not much to add really to the sound advice from colleagues. I have just one point to make in addition to those made:

If an agency has serious concerns about the work handed in, they have the right to express these concerns and perhaps to argue the case for a discount on the work handed in. However, they are obliged to identify these concerns in specific terms and the mistakes in question have to be identified by a linguist qualified in the language pair in question. There's no point in a project manager who doesn't understand Japanese for instance criticizing your work, and any comments of this nature deserve to be ignored outright.
It would be really easy if an agency could just turn around and say "no, it's no good" and then get away with not paying people. This is illegal. They have made a commitment to pay you for your work and they now have to pay you for it since you've kept up your side of the bargain. So far, the arguments they have raised would not stand up in court.

Equally, the copyright of the work is yours until you've been paid for it so they're also infringing copyright legislation by using your work and not paying for it.

I think that they're trying to take advantage of you. Don't let them Fumizuki!


 

Fumizuki Huyo
Local time: 13:38
English to Japanese
+ ...
TOPIC STARTER
Thank you for the addendum. Apr 10, 2013

Hi Marie-Helene,

Thank you for your extra info. and comments.

I've just written a letter to them stating all the points that I'm concerned about and find unjust.

Hope they will be reasonable.


 

hindi_linguist
India
Local time: 06:08
English to Hindi
+ ...
Not copyrighted Apr 20, 2013

[quote]Marie-Helene Dubois wrote:

Equally, the copyright of the work is yours until you've been paid for it so they're also infringing copyright legislation by using your work and not paying

Is it possible to claim for the text when it is not copyrighted. None of the text written by you is copyrighted. Any text not copyrighted, can be used and published.


 

Łukasz Gos-Furmankiewicz  Identity Verified
Poland
Local time: 02:38
English to Polish
+ ...
My thoughts May 1, 2013

Fumizuki Huyo wrote:

Recently I have had an unpleasant experience with a rejected translation and would like some advice.


I'm sorry to hear that. Those are always awful moments.

My work was rejected by the client saying that they found quite a few grammatical errors.


While it's bad for a translation to contain a noticeable number of grammatical errors, a translator's service is translating and not translating flawlessly. Deficient goods or services merit a price reduction according to the agreed standard (for the record, in my country that'd explicitly be "average" unless otherwise specifically agreed by the parties) but unlike what some people think, the presence of a couple of errors does not entitle the recipient of a translation to refuse to pay for it. That's some feudal kind of thinking. Won't pay you if I'm not fully satisfied. You should be happy I'm paying you at all when I am. Nope. Services need to be paid for.

They also said that the text did not sound as if it was translated by a native speaker of the target language.


I'm inclined to say the same about quite a good of deal of writing done by native speakers.

But the reasons for rejection from the agency were again unspecific. Apparently there were some errors in my article usage,


Reviewing someone's use of articles requires understanding of what that person wanted to say. It's possible for a proofreader to misunderstand a phrase and think that articles were used incorrectly by the author where that's not the case.

and the translation did not sound natural, was all they said.


Few texts do, and those which do often run afoul of prescriptive standards. Whimsical proofreaders are a pain in the side because if you translate naturally, they will complain about formal equivalence; where you translate faithfully, they'll complain about the flow. I say they need to go out more.

This said, I'm not saying your translation was or was not natural, I'm just commenting on known clichés. If you're knew, there actually is some chance they're vaguely right, especially if your competence in the target language is below "near-native" (or C2).

Then they commented that they hoped I would apply this experience to better improve my translation skills and move forward.


Don't read into that one, although I'd expect them to be able to show and prove what was wrong if they use such phrasing.

I would certainly appreciate feedback since I am fairly new to the industry, but what concerns me is that the agency actually used a good deal of my work in their final translation and delivered it to the client. I know this because they sent me a copy of their final translation and I have compared it to mine.


The problem is that fixing translations takes more time than translating. From this point of view, the agency may feel that the translator deserves no pay. On the other hand, the translator did at least invest his time and complete the brunt of the work, including the necessary typing footwork. Basically, it's a lose-lose situation for both the agency and the translator.

It appears to me that the original source text might have been extensively modified. I can see many parts that they newly translated do not relate to the text that I was originally given.


That can mean someone who corrected your text didn't understand the source, or it can mean the source was modified, yeah. In either case, there's mess, and there shouldn't be mess but clarity when they're charging you with failure and resorting to non-payment.

- Can the agency reject my translation work without stating specific examples of errors that they are concerned about, and not give me an opportunity to correct them?


Bad practice but they possibly can. The problem is that pointing out examples and coming up with a coherent, exhaustive opinion takes time (and time is money), and there's little hope of getting paid for it--in fact, they could only perhaps recover something for it in litigation.

Do they have the right to use any part of my translation that they rejected and did not pay for?


That's complicated. They shouldn't be using work they have rejected. At all. This is based on the word "rejection", which is self-explanatory. On the other hand, an agency could assess a claim against you and deduct it from your fees, leaving you at zero or even below, without actually rejecting your translation, meaning that it might be able to keep it while not paying you for it (ostensibly on account of damage or loss generated by your alleged inadequate performance).

I would be grateful if anyone could give me advice on these questions based on the industry standard.


The industry standard is that deductions shouldn't be higher than 50%, that being for a badly botched translation, not just a couple of grammatical errors and slightly non-native language, or simply the fact that the client preferred to rephrase every single sentence for better style. Below that, translations tend to be rejected.

Rejection, for the record, puts the rejector in a bad place from the point of view of copyrights because it can mean that copyrights failed to transfer to the rejector, as he repudiated the transaction.

Also, even without copyrights, I suspect an undue enrichment claim based on the rejector's use of the non-returned product of a repudiated contract could be successful, but don't quote me because I'm not talking about any specific jurisdiction.


 

Łukasz Gos-Furmankiewicz  Identity Verified
Poland
Local time: 02:38
English to Polish
+ ...
Copyrights May 1, 2013

[quote]Hindi Linguist wrote:

Marie-Helene Dubois wrote:

Equally, the copyright of the work is yours until you've been paid for it so they're also infringing copyright legislation by using your work and not paying

Is it possible to claim for the text when it is not copyrighted. None of the text written by you is copyrighted. Any text not copyrighted, can be used and published.


Actually, you acquire copyrights by simply creating your translation as a derived work, even if the original was not copyrighted. What governs is how you dispose of the copyright in your contract with the client. In the absence of a contract dealing with the copyright, you retain that copyright. There may be some differences in some jurisdictions.


 

Michelle Kusuda  Identity Verified
United States
Local time: 20:38
English to Spanish
+ ...
Contact end client May 1, 2013

Contact end client and apprise them of the situation, provide them with the correspondence between you and the agency, as well as a copy of this thread.




Good luck!


 

Łukasz Gos-Furmankiewicz  Identity Verified
Poland
Local time: 02:38
English to Polish
+ ...
Not always advisable May 2, 2013

Michelle Kusuda wrote:

Contact end client and apprise them of the situation, provide them with the correspondence between you and the agency, as well as a copy of this thread.




Good luck!





First check with your contract. Months or years ago you may have signed something to the effect that contacting an end client triggers a boatload of gold in damages without need to prove any damage. Much of that stuff doesn't fly in common law, which tends to hate contractual penalties (not that liquidated damages can't be a pain regardless, mostly because they are liquidated), but things are different in civil law systems.


 


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