Work For Hire versus Literary Translation Contracts 101

contract

In last week’s post about translation contracts and NDAs one of my readers left a very interesting comment on copyright. In that post, I had mentioned something about literary translation being in a whole different ball game on the count of Intellectual Property (IP) Law; but as my reader wisely pointed out, in some countries, unless they waive their rights, translators hold intellectual property rights over all their translation work including “work for hire” jobs. Needless to say, it’s not always that simple, in some countries Intellectual Property Law (IP Law) may clash with other laws. So the game rules aren’t always that clear.

In addition, clients may have good reasons to ask translators to waive IP rights on non-literary jobs; while translators, in turn, may have no interest in holding IP rights over certain types of translations anyway. Although IP is not intrinsically problematic or complicated, things can get pretty messy when someone tries to rip off someone else’s translation or when machine translation engines enter the scene claiming IP rights.

All these issues raised by readers got me thinking about what other legal questions and issues translators may have. So I went online to do a little research and found a lot of confusion and misinformation about the basics of translation contracts. Thus, in this post, I will be addressing some FAQs I saw online. Other, not-so-basic-but-equally-important-questions will be addressed in future posts.

Work for Hire Translation Contracts

Contrary to popular belief, an NDA is not really a work for hire translation contract. In fact, NDAs used to be about protecting confidentiality, until agencies had the bright idea of broadening their scope and using them to replace independent service agreements. Therefore, a lot of these frankensteined NDAs are deficient both in their originally intended use as non-disclosure agreements and their ad hoc use by agencies.

But epic fails in NDAs are not the only thing causing confusion and misinformation when it comes to translation agreements. There’s also the issue of what translators focus on and what they overlook. It seems most translators focus their negotiations and agreements on very few elements: fees, payment date and/or terms, and rush fees (when applicable). This leaves out a lot of very important elements that often result in loss to translators:

1) Copyright: Who holds IP rights? In work for hire agreements, it is often in the best interest of the translator to waive copyright and spare him or herself the burden of having to protect copyright, trademark or other rights, but that really should be evaluated on a case-by-case or client-by-client basis.

2) Confidentiality: To what extent is the translator responsible for protecting confidentiality? If the translator is using machine translation engines then the question of confidentiality is not so simple.

3) Fees: Other than per word or per job fees and rush fees, translation contracts should include cancellation or withdrawal fees, late payment charges, additional service fees (research beyond a standard translation, additional review fees if, for example, the client changes the source document after the job has already started, post-delivery changes per subjective client preferences or terminology, formatting, etc.), additional costs (out of pocket expenses incurred by the translator that are not part of a standard or routine translation job, this may be particularly important to sworn public translators), etc.

4) Indemnification and Hold Harmless Clause: The purpose of a hold harmless clause in a translation contract is to absolve the translator from any responsibility for damages or other liability suffered by a third party arising from the translation transaction; while the purpose of an indemnification clause is to ensure reimbursement for loss. Imagine, for example, your client Acme asks you to translate an agreement between them and Widgetco. You should not be responsible or liable for any damages suffered by Widgetco by virtue of their agreement with Acme, unless said damage is a direct result of a translation error on your part. Changes by others matter here as well. You should not be responsible for any changes made to your work by anyone other than you.

5) Governing Law and Jurisdiction Clause: This is a big deal… a really BIG DEAL! Depending on where you are in the world, the governing law and/or jurisdiction can make or break any chance you might have of enforcing your agreement or protecting your rights if things go sour. So be careful what you sign!

6) Dispute Resolution Clause: It may sometimes be in everyone’s best interest to resolve contractual disputes via extrajudicial processes such as arbitration or mediation, when applicable, instead of submitting disputes to the courts. Alternative dispute resolution is faster, less expensive and often much more effective than litigation.

Literary translation contracts

Literary translation contracts are not different from work for hire contracts in terms of Governing Law, Jurisdiction, Dispute Resolution, and Indemnification and Hold Harmless Clauses. All of the above also applies to literary translation. However, they have some characteristics of their own:

1) Changes by Others: Literary Translators should make sure publishers and/or authors agree not to make any unapproved changes to their work.

2) Advance and/or Partial Payment: Literary translation jobs often go on for months on end and translators have to eat in the meantime! I once worked on a book for which the author sent me one chapter a month for 14 months. Needless to say, it was not reasonable for the author to expect me to wait until the entire book was translated to get paid and my contract was quite different from a work for hire contract. Among other things, I had negotiated several partial payments throughout those 14 months. Asking for advance or partial payment is perfectly reasonable, especially if the job will require one’s full dedication.

3) Royalties: Most agreements include hard covers and paperbacks, but e-books and audio-books should be included as well.

4) Translation Credits: The translator’s name should appear on the cover, but we all know this is something publishers are often very reluctant to do. Either way, it should appear somewhere and that should be stipulated in the translation contract.

5) Copies: Translators should receive a certain number of free copies of their work and should be able to purchase more copies at a discounted rate.

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Of course, this list is by no means comprehensive, but is rather an introduction to the basics that sometimes get overlooked. Consider it a starting point, if you will, and then let your negotiating skills take you where they may!

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