Translator Book Contract

It is important for translators to have a good understanding of their rights and the legal status of translations, both for the sake of avoiding ambiguity in their contracts and for entering into negotiations with publishers with full confidence.
 
Contrary to what some assume, translations are not simply renderings of a work in a new language; they are, legally speaking, new works that incorporate some elements or the entirety of pre-existing works while adding new copyrightable authorship to that work, entitled to copyright protection to the extent of their original characteristics. Under law, these are referred to as "derivative works."
 
As the U.S. Copyright Office explains, "A derivative work is a work based on or derived from one or more already existing works. Common derivative works include translations, musical arrangements, motion picture versions of literary material or plays, art reproductions, abridgments, and condensations of preexisting works."1
 
The right to create or to allow someone else to create a derivative work from a pre-existing work belongs to the author, or rightsholder, of that work. (For the remainder of this commentary, the terms "author" and "rightsholder" should be understood as synonymous, and they will be used interchangeably.) Therefore a translator must have the rightsholder's permission to translate the work (for books currently in print, the right to create a translation is often held by the publisher of the work in its original language). Legally, this permission is required even if the translation is created for private use without any intent of publication and distribution. Of course, the likelihood of incurring liability for copyright infringement is largely diminished if the translated work is never published or publicly distributed; nevertheless, from a purely legal standpoint, an unauthorized translation is still an infringement of the author's exclusive rights.
 
As the creator of the translation, provided you have obtained permission from the owner to the rights of the underlying work, you "own" your translation: The copyright on it is yours, and your publishing contract should make that clear. Because translations are protected by copyright independent of the original work, translators possess and are able to exercise the same exclusive rights with respect to literary works as authors, insofar as these rights do not conflict with the rights of the author/rightsholder of the original work. For example, translators have the right to reproduce the translation, distribute the translation, and publicly display and perform the translation; they do not have exclusive right to create or license the creation of adaptations, sequels, or other types of derivative works. This makes sense, given that characters, plot, setting, etc., are unique to the original work.

Work for Hire
 
A work made for hire (in short, "work for hire") is a special provision under the Copyright Act, whereby ownership of a work is transferred from the creator of the work to another person or entity automatically upon creation of the work. As a result, work for hire creators give up all their rights in the work, including the copyright. Instead, the person or entity commissioning the work is considered the creator and therefore the exclusive legal owner of those rights.
 
The Copyright Act recognizes two types of works made for hire: (1) a work that is created as part of its creator's employment, and (2) a work that falls within one of nine specific categories listed in the copyright statute and that is created under the terms of a contract that expressly refers to its creation as a work made for hire. Since translation is one of the nine categories enumerated in the statute, translators should look out for phrases such as "the translation is a work made for hire" or "is being commissioned as a work made for hire" in their contracts' grant of rights clause and try to negotiate the removal of this term. If you sign a contract that states that your translation is a work for hire, then the publisher is legally the copyright holder and you retain no rights. The good news is that advocacy by translators has increasingly led to a shift from work-for-hire contracts to ones in which translators retain their copyright.
 
Also watch out for language such as "Translator hereby grants all rights in the Translation" or "Publisher shall own all right, title and interest" in the Translation." These phrases are functionally similar to a work-for-hire arrangement in that they transfer all rights in the work to the publisher. Although they differ from a work-for-hire agreement in that you can still terminate a transfer of rights under the provisions of Section 203 (see discussion of Section 203 Right of Termination, below), until then the publisher can make use of your work without restriction. So, unless you intend to create your translation as a work for hire, you should not accept this language in your contract.
 
Permission to Translate
 
Typically, the rights to translate a work are first negotiated and acquired by a publisher, although many translation projects are initiated by translators, who, having obtained permission, translate a sample of the work to send out to publishers. Since the primary motivation behind our Translation Model Contract is to provide guidance on contracts between a publisher and a translator, we will proceed under the assumption that the publisher has acquired the necessary permission from the author or rightsholder.
 
In some instances, especially if the publisher and the translator have a strong relationship, the publisher may be willing to share with the translator a copy of the translation rights agreement during the negotiations (alternately, if you as the translator have a relationship with the rightsholder, you may request this directly from them). We encourage translators to ask for a copy of the agreement between the publisher and the rightsholder of the work they are translating, but note that the publisher will likely be reluctant to do so. Knowing the details of a publisher-rightsholder agreement can be useful to translators in negotiating the terms of their own contract; nevertheless, even if you aren't able to see the rightsholder's agreement, be sure to ask for as many details as possible— territorial restrictions, any term limits, royalty breakdowns, as well as the rights and subrights granted by the rightsholder to the publisher—all of which should give you a better idea of your bargaining power.
 
Term of the Grant of Rights
 
The term of the grant of rights is the length of time the publisher will hold the rights to your translation. The standard term for granting rights in traditional trade publishing is "the whole term of copyright"—i.e., the creator's life (in this case, the life of the translator) plus 70 years—but any creator has the automatic and unwaivable right under Section 203 of the Copyright Act to reclaim the rights to their work after 35 to 40 years (as described later in this section), or if the book goes out of print.
 
Some translation contracts may be limited to a number of years (e.g., 5 or 10 years), particularly if the grant of rights to the publisher to translate the work is similarly restricted. If you know the grant of rights for the original work is limited to a certain period of time but your translation contract contains a life of copyright term, then you should change the term of your grant of rights to match that of the original. Even if you don't know the length of the grant of rights for the original, you can insert language such as "a term coextensive with the rightsholder's permission"—in other words, a term that is the same length as the grant of rights for the original work, to ensure that your rights revert back to you at the same time as the author's (see also Termination, Clause 13(d), which operates in a similar way). Simultaneous reversion of rights is ideal, since it makes it easier for the author or rightsholder to work with the translator to reprint the translation and keep the work economically viable. A life-of-copyright grant is less objectionable if the contract also contains an acceptable out-of-print clause. All contracts should have an "out-of-print" clause that allows translators to reclaim their rights and terminate the contract early if the publisher is no longer making more than negligible sales of the book. Out-of-print clauses are discussed in Clause 13, Termination.
 
Section 203 Right of Termination
 
Another way for translators to reclaim rights early is never mentioned in the contract, but is provided for by copyright law. Section 203 of the Copyright Act permits all creators, including translators, to terminate a grant of rights during a five-year window, starting either 35 years after the work is published or 40 years after the date the contract was made, whichever is earlier. Note that Section 203 Right of Termination is available only if you have copyright; it does not apply to translations created as a work for hire.
 
Under Section 203, in order to terminate a grant, the translator must give the publisher written notice of intent to terminate the grant at least two years, and no more than ten years, before the date the termination will be effective. This right of termination cannot be waived—meaning that a contract provision that tries to override this right is ineffective. (Note that a separate provision applies to works published before 1978.)
The Authors Guild believes that 35 or 40 years is an unreasonable length of time for translators to have to wait to regain the rights to their translation from the publisher, in particular if the publisher is no longer promoting the translation or selling it in significant numbers. This is why we are currently advocating for either shorter terms of license (i.e., shortening the length of time for which the translator grants rights to the publisher to publish the translation) or an amendment to Section 203 of the Copyright Act, which would shorten to 10 or 20 years the length of time that creators, including translators, have to wait to regain the rights to their work after it is published.
 
Territory
 
Publishers often request world rights to the print, ebook, and audiobook versions of your translation. However, if you ascertain that the publisher has acquired the rights to sell the translation only in certain enumerated countries/territories, or if the author has withheld certain rights from the publisher, then you may limit the grant of rights in your translation to accord with the rights granted to the publisher by the author. Ideally, translators should grant the publisher rights to license their translation only in those territories where they expect the publisher to sell and market the translation. For instance, if you have a contract with a US publisher that does not have a significant presence in the UK, you may reserve the right to license the translation in the UK, so that you can negotiate the license to your translation yourself directly with a UK publisher. Just keep in mind that translation publishers almost always seek world rights—i.e., the right to publish the translation in any country or territory they choose—so getting them to agree to limit the licensing of your translation to certain countries or territories is likely to be difficult. (See also Clause 4, Fees and Royalties).
 
Formats
 
When reviewing the publisher's contract offer, pay close attention to the formats (sometimes referred to as forms and media) listed in your contract. The publisher can only publish your translation in those formats for which you give permission in the contract, so you want to be sure your contract specifically identifies these. If instead of listing specific formats (e.g., hardcover, paperback, electronic, and audio), your contract says something akin to "all forms and media in existence or hereafter invented," then ask the publisher to change the language to "hardcover, paperback, and electronic book form." Due to the growing sales of audiobooks in recent years, many translation publishers now ask to license audio rights in addition to print and electronic rights. While we recommend that translators grant audio rights (provided the publisher also has the audio rights to the underlying work), if you do so, you should also be sure to ask for a percentage of the audio sales (see Clause 4, Fees and Royalties). Also keep an eye out for language such as "the right to make derivative use," as this can allow the publisher to use elements of your translation in media other than books (see discussion under Derivative Works, below).
 
Subsidiary Rights
 
Subsidiary rights are those granted to the publisher by the translator, which the publisher does not exercise on its own but allows another entity (such as a foreign publisher or ebook publisher) to exercise on its behalf. Since a translation publishing contract is an agreement between a translator and a publisher, only the publisher can exercise the rights granted in it (also called primary rights), unless additional specific language gives the publisher authority to allow someone else to exercise the publisher's rights in its place. This distinction can be noted between the language in Clause 1(a) and Clause 1(b) in the Grant of Rights: 1(a) grants the publisher rights to print, publish, and sell the translation (primary rights); 1(b) on the other hand grants it the right to license the enumerated rights (subsidiary rights). The rights listed in 1(b)(i)–(vi) are termed subsidiary because they are licensed by the publisher to a third party, who then exercises those rights in the publisher's place.
 
Subsidiary rights can be further divided into print-related and non-print-related rights. Typical print-related rights include serial, book club, permissions to use excerpts or quotes, and trade or mass-market paperback. Non-print rights include verbatim text ebook edition, enhanced ebook edition, audio recording, and merchandising. We recommend that translators grant only print-related rights, verbatim text ebook rights, and audiobook rights, all to the extent granted by the author in the author's agreement with the publisher. We recommend that, whenever possible, translators retain the right to license the translation, in whole or in part, for use in media other than physical or electronic books—for example, radio, TV, film, stage, quotation or subtitling—because if the translation sells well, these could turn out to be more valuable than you anticipate at the time you negotiate your translation contract. For example, if you translate a novel from French into English and a film producer buys the right to adapt the novel from the author or her publisher and intends to use your translation as the basis for the film adaptation, you could license the use of your translation directly to the film producer. If your publisher controls the right to use your translation in this way, then you don't have any power to negotiate film licensing royalties, which has the potential to be a large additional source of income.
 
Derivative Works
 
The notion that a derivative work cannot be the source of another work may lead to translators losing out on licensing income. There are plenty of instances where derivative works (such as a movie adaptation of a book) have served as the basis of another derivative work (a stage play or opera, for example). It's more accurate to say that a derivative work cannot in and of itself serve as the basis for another derivative work, or it can do so only up to the point of the original author's rights in material incorporated into the derivative work. In addition to licensing film rights for the underlying work from the rightsholder (i.e., the right to use character, plot, and other core elements of the original text), a film producer has to license film rights from the translator in order to use elements of their translation such as English-language dialogue, as well as for use in script and project development. To be clear, the translator's rights will be implicated only if the film or other derivative work is based on the translation. An English-language film adaptation based on the English translation of a French novel will implicate the translator's rights, but a French-language production of the same novel will likely not implicate these rights. It may also happen that an entirely original English language screenplay is created from the underlying foreign-language text, or that a screenplay is developed in the same language as the original work and then that screenplay is translated into English. So it may not always be clear whether the derivative work (in this case a film) is an adaptation of the original work or an adaptation based on the translation. Subtitling and localization presents yet another complexity. As a general principle, if you have retained rights to derivative works, the original author, publisher, agent, and developers of the project working in good faith will try to get permission from you before adapting your translation of the work.
 
Clause 1(c) of the Translation Model Contract limits the potential use of a translation to create derivative works such as television programs, films, commercials, and other types of adaptations. If your contract contains language that allows the publisher to use your translation to create "derivative works" or something else to the effect of authorizing the publisher to create or license the right to create new material based on your translation, be sure to delete it, or require the publisher to share income with you (see Clause 4, Fees and Royalties).
 
Relay Translations
 
The principle of a translation being a derivative work of the original also applies to translations relay translations. Relay translations are translations created from existing translations of works, typically when the original work is written in a rare or less common language—for example, a French translation from an English translation of a work written in the Uighur language. If the author or rightsholder of the work has granted translation rights only into English, then permission is required from them to translate the work into French, even if the French translation is being created from the English translation. But because relay translations also implicate the rights of the translator, the translator's permission is needed as well. It is in your interest to reserve for yourself the right to license relay translations from your work, so that you can work directly with an interested translator from a third language; if the publisher retains this right, you should request a percentage of any licensing fees (see Clause 4, Fees and Royalties).
 

If you grant the publisher rights to use your translation to create third-language translations, make sure you include a clause that prevents the publisher from generating the relay translation using AI technologies. Here is a sample clause that you can use:

Translation Clause (for use with grants of translation rights) 

With respect to any translations created or distributed under this Agreement, Publisher shall not translate or permit or cause the Work to be translated into another language with artificial intelligence technologies or other non-human translator, without Translator's prior and express written consent. For purposes of clarification, a human translator may use artificial intelligence technologies as a tool to assist in the translation, provided that the translation substantially comprises human creation and the human translator has control over, and reviews and approves, each word in the translation.

For further discussion, see Subsidiary Rights in the commentary under Clause 4, Fees and Royalties.
 
1 U.S. Copyright Office (2013), Circular 14, "Copyright in Derivative Works and Compilation." Retrieved from https://www.copyright.gov/circs/circ14.pdf.
 
2 For more information, see A Guide to Terminating Transfers Under Section 203 of the Copyright Act: https://www.authorsguild.org/member-services/legal-services/terminating-transfers/ (last accessed August 29, 2020).