ATA Copyright Webinar: Q&A

QandA

Right before leaving for the 56th Annual Conference of the American Translators Association in Miami, I facilitated a webinar for the ATA on Copyright. The webinar is available here. The purpose of the webinar was to help literary and non-literary translators understand copyright law and how to protect their rights. All in all it went pretty well. I managed to cover all the topics that I had anticipated, but could not get around to answering all the questions posed by participants. My original intention was to address the questions before ATA56, but then work and life happened and it was impossible to sit down to write an adequate response. Fortunately, most people are very reasonable and understanding and since I met a few attendees in person in Miami, I promised them I would take care of these questions as soon as I got back to Buenos Aires. So here goes.

1) If I am going to sign a literary translation contract, should I always think of hiring a copyright lawyer?

Absolutely not. However, at least once in our professional lives it wouldn’t kill us to consult with an expert and get some help developing a draft or model contract that we can then follow and apply on future projects. But that doesn’t mean we’ll need a lawyer for each individual transaction in the future.

2) I have independently translated lyrics to songs by a well-known composer, now deceased. Can I sell/ lease my translations to performers, or do I need permission from the composer’s estate?

If the composer was the owner of the work, did you get written permission from him or her before they passed away? If not, you need to find out who owns that copyright now: Their estate? The label? Are the lyrics in the public domain?

3) Membership in the Author’s Guild includes consultation with the Guild’s lawyers.

Though that’s not actually a question, this comment was totally worth sharing.

4) Are you saying to sell your copyright?? (the fee you receive for your literary translation)

No, that’s not what I was trying to say. What I was trying to say is that when figuring out what you can and cannot do with your copyright, it helps to think of it (in abstract terms) as a piece of land which you can sell, lease, divide, bequeath, etc. This should not be taken literally to mean sell your copyright all the time in every case.

5) For a literary translation, if the author is the only copyright entity on the title page of work, is it sufficient for the translator to get written permission from the author, or does the translator need permission from the publisher as well?

You should always get permission from whoever owns copyright. In this case, it is very likely that the author is the owner of the work, so starting with the author is a good idea. However, you should also bear in mind that author (in the sense of creator or writer) and owner are not necessarily the same person. If the author is not the copyright owner, they will be able to tell you who is if they have an interest in seeing their work translated.

6) When requesting permission to translate and seek publication for a poem or other piece of literature, sometimes I get the response that I have permission to translate, but not to sell, publish, or spread out in any way. May I still seek publication from journals for this translated work, and then they can work out the publishing agreement themselves? If not, how might I respond to the original publisher?

It seems like what you are getting is permission for fair use, which is a right you already have. That being said, journals are not likely to want to publish a translation of a work that was not authorized for publication by the copyright owner. Some journals also ask that the owner waive all copyright upon submission. So you might be setting yourself up for a fall. However, if the journal is interested enough in publishing that content and they have sufficient negotiating power, they might be willing to negotiate the copyright themselves, but that is not always the case. My recommendation is never to start translating anything before you have all necessary licenses and permissions from copyright owners. Take care of the legal aspect first and the translating last; otherwise you may end up working on something that may never get published.

7) Are you familiar with the Babelcube contract and if so can it be called fair for the translator?

Issues of fairness in business practices are very hard to assess because there is no single unequivocal way to determine what is and isn’t fair. However, I am familiar with the contract. In fact, I translated a book via Babelclub just to see what the fuzz was about and how it worked. I made a whole 0.50 cents! Based on that experiment, I think it’s not as much a question of fairness as it is a question of likelihood that the book will sell. If the book tanks, you will end up working for nothing. If the book soars, then the numbers stipulated in the contract are pretty reasonable. The problem is that you’re leaving far too much to chance and they have yet to get a single best seller on their platform. The way the platform is working now results in total loss to translators; meanwhile authors, who would otherwise have had to pay translators, are getting their work translated for free (or peanuts). After having tried the system for myself, I don’t support it at all.

8) Should translators forgo advance fees for royalties?

As a lawyer, I can’t really answer this question. There is no legal reason to go either way. However, as a translator, I would not forgo fees for royalties unless I was sure I was facing a best seller and the royalties were very high. The only time I tried that was (as indicated in the question above) part of an experiment to see if Babelclub worked and how, and the result was exactly as expected: the book tanked and I made no money! I was in a position where I could afford the risk, but that might not be the case for everybody. So I would advice a serious cost-benefit and risk assessment before foregoing fees.

9) I am not sure I heard the answer to the following questions: Who owns the copyright when machine translation is used? What if the translator and client or publisher are in different countries? What if someone obviously ripped off someone else’s translation? And, above all else, how can translators protect their intellectual property rights?

These questions pretty much sum up everything we talked about during the webinar. Last I checked, the MT issue had not yet been taken to court, so we still don’t know how courts are going to decide such cases. All we can do at this point is speculate. Most MT platforms have clauses saying they own copyright. So I would advise against using MT without client consent and knowledge of this potential issue.

If the translator, client and publisher are in different countries, you need to clearly establish in your contract who owns copyright; and it wouldn’t hurt to determine applicable law and conflict resolution beforehand to make things simpler if the deal goes sour.

Determining whether someone ripped off someone else’s translation in court is very difficult. However, if someone does rip off your translation and you can prove it, then you can exercise all your rights as the owner of the derivative work, provided you haven’t waived those rights already.

I talked extensively about protection and it comes down to a good contract. First, you need to be very clear about your intent when it comes to copyright. If a work is a “work for hire” then it should say so, if not, then that should also be clear. Protecting copyright comes down to the five big clauses we discussed at the end of the webinar: copyright clause, translation credits, royalties, governing law and jurisdiction, and conflict resolution.

I believe the rest of the questions were answered during the Q&A part of the webinar. If you attended the webinar, feel free to use the comment section for additional questions or clarifications. If your question was not answered, let me know, I’ll be happy to address it here. And, of course, thanks for attending and reading!

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