Intellectual Property Workshop
How is a translation copyright different from a regular copyright?
ERACH SCREWVALA: A translation is like any other kind of work. It has a separate copyright attached to it that you have the ability to own. The difference between a translation and an original story that you write in your native language is that the translation is called a derivative work, which means it’s based upon a prior copyrighted work. Although the translation carries a separate copyright, as a derivative work, it is tied to the copyright in the original work. Therefore, any exploitation of the translated work requires permission of the copyright holder in the original.
You’ve probably heard about “moral rights.” Basically, under “moral rights,” when a work is completed it can’t be altered, changed, mutilated, or destroyed. “Moral rights” are really a European concept and don’t really apply in the United States. However, you can work these rights into the publishing contract through negotiation. For example, the author should seek the right to approve changes to the manuscript.
Can you talk about work made for hire? Would you recommend against it in every case, even in, say, an anthology with multiple stories and authors?
SCREWVALA: Work made for hire essentially means that you do the work and someone else owns it as if they had done it in the first place. Your translations should not be works made for hire whether it is part of an anthology or a stand alone project. I’ve always started my negotiations from the point of view that the translator will own the copyright in the translation.
We find that work-for-hire is what many publishers want. That’s what they start with.
SCREWVALA: I think that has got to be point number one on your negotiation hit list. And you have to look out for what I call “backdoor work-for-hire.” This is what they say: “Alright, you won’t do work-for-hire. We’ll give a copyright.” But then they insert language in the final contract that says you agree to assign your copyright over to them. It’s the same. You’re in no different position than if you had a work-for-hire contract. Basically, you’re saying, “I got the copyright, but here you can have it.”
Even if you have signed a contract assigning your copyright over, either explicitly or implicitly, you should be able to reclaim it through a reversion clause in the contract.
Can you explain a little more about reversion?
SCREWVALA: Under a reversion clause, you will regain the rights to your book if the publisher allows it to go out of print. This is a clause that should be in both the translator’s contract and the native language author.
Ideally, your contract will provide that if the publisher revers rights to the native language author, then the translation will automatically revert back to the translator. You may have to put a request in writing to the publisher, but that should be all that is necessary.
With the advent of e-books, reversion has raised some very interesting questions. When you have paper books it’s easy to tell if something is out of print. You go down to your local bookstore and check out the shelf; it’s either there or it’s not. But e-books are different. Amazon.com and similar sites don’t have limited shelf space like bookstores. So, publishers can always offer an e-book for sale. But that shouldn’t be enough for the publisher to avoid reversion.
The way we’ve dealt with this lately is to set a threshold amount of e-book sales that would constitute the work still being in print. Right now that number is somewhat low. I’ve seen it somewhere in the range of 100 to 250 copies per year.
So if the book is technically out of print—they’re not printing more copies and they are remaindering the books that were on the shelves, but they still offer it as an e-book—so long as they sell 100, 200 e-books, whatever the set number is a year, they still consider it in print.
What if the book is created as an e-book and doesn’t sell more than 200 copies?
SCREWVALA: If it’s created solely as an e-book? That’s a question of negotiation. I would be interested to see what the language would say.
Take the case of Amazon Crossing. Say a book is translated from German only as an e-book and it’s not popular at first. It sells 80 copies the first year, and then it catches on and sells 500 copies the second year. How do you navigate that?
SCREWVALA: My understanding is that Amazon is essentially looking for a work-for-hire arrangement. That’s how they intend to deal with it, by taking everything. But let’s assume for a moment that you’re in this situation with the publishers and you want a lower initial threshold. You should talk to the publisher and say, “How much time do you think you need? For five years it can’t go out of print, for seven years it can’t go out of print. After five or seven years then it is 100 books a year.” Or maybe it is the available books sold over the five years. Average it out and say, “If you can’t do 20 percent on what you did on the average over the first five years, the books aren’t going to.”
When that scenario comes up, that’s an area where you need to get a little creative. A recognized publisher needs time for the book to mature; they need to develop sales. At the same time, if the publisher owns the right to publish the translation for the life of the copyright, that’s another backdoor work-for-hire situation. You don’t ever regain control over your work.
You want to have your copyright back because you actually want it to be sold. Another important point is that if someone wants to use your translation, your book, as the basis for a film, a play, or a movie then the copyright belongs to you. The people at the secondary firm come to you and not the publisher.
SCREWVALA: That’s a good point. The book is not being sold by this particular publisher. They’ve moved onto hundreds of other projects. They’re not going to offer that book ever again, more than likely. The reason people get their books back is that sometimes they’re able to find a new publisher willing to do it.
Is there some kind of notification when a copyright reverts back to you? And once you’ve regained your copyright, on what legal basis can you market it?
SCREWVALA: On the first question, you’re going to know if the book is out of print because you’re going to get your royalty statement and you’re going to see that it’s no longer listed, it doesn’t have an ISBN number, things like that. If there is an e-book clause in there, you’re going to look at the number of downloads or copies sold electronically and you’re going to see that it has fallen below what the threshold is. Then you’re going to ask the publisher for a reversion letter.
Then if the publisher does not reintroduce the book (because most of these clauses will give the publisher the opportunity to reprint the book or offer it for sale in lieu of giving you reversion) they’ll send you a reversion letter documenting the fact that you’ve reacquired the rights to the book.
Now that you have this letter, what do you do? It’s tricky because your right to do something with the translation, with the copyright, depends upon the underlying work. It’s now a question of working with the original author to sell the book somewhere else.
Here’s one scenario: Say an author writes a book and you translate it. Several years go by and the rights revert back to you both. Several more years go by and the author you worked with writers a new book, and you translate it. Maybe you go to a publisher with the old book and the new and say, “You can publish my new book and my old book that was reverted.” In terms of trying to get your work out there again, you have to coordinate that with the underlying author.
For any contracts that we’ve had in the past—say, a book that was translated 10 years ago—when that goes out of print and you don’t have that e-book clause, because it didn’t exist then, is it possible to ever get your copyright back?
SCREWVALA: A number of my clients have been getting letters with amendments to their agreements. The letter says, “We think we have the rights already even though it’s not spelled out in the contract. We didn’t specify a royalty rate, it doesn’t specifically say e-book anywhere, but we think we already have these rights. But you know what, we want to be nice to you, so let’s do an amendment to the contract and we’ll throw you a very small royalty on the e-books.” That’s happening a lot. When that comes up you have to look at it in light of the question: What happens when the book goes out of print? How does this affect my right to a reversion?
What about a clause with vague language that says the publisher has the right to publish the work with “whatever the technology allows”?
SCREWVALA: If your contract doesn’t specify your royalty rate to be paid for any new instruments of publication, the contract is not complete. This would be my argument: The contract is not complete on e-books because I have no way of knowing what I’m supposed to get for it and I certainly didn’t give it to you for free.
Some publishers have been very generous with 25–30 percent royalty rates for e-books.
SCREWVALA: I think that’s fantastic. That’s not always the case. I’ve gotten 25 percent a couple of times, often times on new negotiations. The highest I’ve gotten before was 12.5 percent. The last one I did was 1 percent. That’s the worst. I think you can’t get much better than 25 percent because you figure publishers will want to keep count: 25 percent to the translator and 25 percent percent to the underlying author. Existing authors are seeing a max of about 25 percent on e-books. Original authors have been arguing for 50 percent all along. It makes little sense that it should be any less, but that has been an uphill battle.
Is print-on-demand the same kind of category? Will they no longer print them unless there is a demand for them?
SCREWVALA: I think print-on-demand is a very specific kind of technology. I wonder if that will really find a market. How do you deal with royalties from one media versus another? The reason they’re different is the level of risk. A publisher takes a certain amount of financial risk to print 1,000 or 1,500 books to put out in stores, to do marketing, all that kind of stuff. They take a lower investment to create an e-book format to throw on the server somewhere and offer it for sale. That’s where the numbers need to be different. How does on-demand fit in there? The upfront investment is substantially diminished because they’re not printing until they know they have a sale. That is an argument for a larger royalty rate.
Going back to Amazon Crossing: as we understand it, new books will be in bookstores but then after the initial launch, it may be in bookstores for a year and then go print-on-demand or e-book.
SCREWVALA: It doesn’t matter if it’s print-on-demand or anything else because they’re taking it for what, $1,000?
That’s right. It’s $500 when you sign the contract and $500 when you send in the book. E-book is 5 percent rights, everything else is 2 percent.
SCREWVALA: What struck me about that contract is they’ve grafted on language to deal with translators, but it reads just like it’s meant for an independent software developer. They add the translation stuff at the end after they’ve done all the boiler plate. The boiler plate has absolutely nothing to do with the kind of work that you do.
Which means essentially that if you would consider a contract like this you would have to rewrite it.
SCREWVALA: You’d start from scratch.
Would they accept that?
SCREWVALA: No. The other thing about that contract that I found interesting, and another reason not to do it, is that you’re going to get $500 when you sign the contract and $500 after you’ve poured your heart and soul into creating a book. Then when they stiff you on your money you’re going to have to go to King County, Washington to get it. You irrevocably consent to the jurisdiction of King County, Washington. Even if they decide to sue you, you have to defend the lawsuit in King County, Washington.
Is that for all books?
SCREWVALA: It seems to be. The contract is not geared for a specific book; it’s either a 500-page or a 5,000-page book. Also there is the right of the publisher to review and reject a manuscript. What happens when a publisher rejects a manuscript? In the model contract I saw—I wouldn’t want to get involved with that. The first step in my view is, “Give it back to me, tell me what you didn’t like, I’ll try to fix it if I think it needs fixing, and I’ll give it back to you.” If they still don’t like it, I say walk away.
I find the notion of the publisher reviewing and not accepting the translation a little crazy. How many editors out there are speakers of the native language you’re translating from? I think not many.
What happens if the publisher says they’re not happy with the translation, but it turns out to be a way of paying less?
SCREWVALA: In that scenario if someone thinks there is a problem with your work, you will want the opportunity to look at it, fix it, and give them another version. That’s what I put into contracts I negotiate.
What about the case when the publisher changes your translation or edits it in a way that you don’t approve?
SCREWVALA: Insist on the right to review your work in the galleys after they’ve had their hands on it. That’s an important point. You need to be able to review your work and make comments and suggestions before it is published with your name on it. Another point, particularly about the U.K., is Anglicization. That’s always a point I put into a contract. They cannot Anglicize your work without your permission. Sometimes the Anglicization is not appropriate in the context of the translated work. That should be something you have the opportunity to work on. I ask for and never get the right to approve the cover, but I sometimes get consultation rights. The publisher’s argument is that the book is so-and-so’s book. My argument is that the translator’s name should be on the cover too.
Even if you have your name on the cover, when you go and look at the web page, there is almost never any information on the translator.
SCREWVALA: That’s something I’ve dealt with in the past. It’s interesting. If you go to the Kindle Store through the Kindle itself, your name as the translator might appear on the web site or the cover. However, your name is not going to appear on the Kindle. If I wanted to search for translations by a specific translator, and I type his or her name into the Kindle Store, I’m probably not going to find anything.
Why is that happening? No one anticipated that.
I don’t know why that’s happening. That’s on my list of projects to undertake. I suspect it has to do with how the program is set up because everything has numbers in a database, and a database is only as good as the fields you set up to create the database. My guess is that there is no field for translators.
They list translators on their web site as second authors. With certain books on Kindle, there’s no title page, no cover, no copyright page. It just starts on the first page of chapter one.
And yet Amazon gives to the PEN Translation Fund as they do to virtually all the translation prizes in America. They’re very interested in the field. Some of these issues can also stem from lack of communication in different publishing departments. Regardless, in negotiating more and more electronic rights contracts, can translators request that their names appear on any electronic version of the book?
SCREWVALA: You can say it, but it doesn’t mean they’re going to do it. In my mind, there should be language in the contract that stipulates if the publisher so much as skywrites the book for intergalactic travelers, the translators have to be credited.
The departments of these publishers, none of them talk to each other. What you get in the contracts department in language, the editorial department has no idea it’s even in there. When they do a cover and it’s completely wrong based on the contract negotiated, they have no idea.
If a publisher violates your contract is it worth it to hire counsel and go after them or is it just a shame that it happened?
SCREWVALA: The problem is the publishers won’t want to remedy the problem short of you suing them, and it’s an expense. It’s a tough question to answer. I think there might be some instances where it’s worth it, particularity if it’s a prominent book that’s very popular. Then sure, but it’s a double-edged sword: The more you want it the more difficult and costly it is for them to remedy it.
What about suing on grounds that changes they made without the translator’s authorization could damage his reputation as a translator?
SCREWVALA: There’s a difference between taking on an issue of having your worked changed versus taking on an issue of credit because the changes of credit is a contract issue; the issue of changes to your work is a copyright issue, not that the copyright is more important than the contract. It’s that under the Copyright Act, if you prevail on an action you get your attorney’s fees paid, as a prevailing party.