FAQs on Translation and the PEN Model Contract
Pursuing a translation project can be challenging, especially for a new translator. As a compendium to the Model Contract for Literary Translations, members of the PEN Translation Committee have contributed these FAQs to assist you:
- How do I obtain rights to a foreign title I am interested in translating?
- How do I obtain permission to publish my translation in a print or online journal, or to submit a translation sample as part of a grant application?
- What is the public domain?
- What does it mean to copyright my translation? What are the benefits to holding the copyright to my translation? How long will copyright protection last for my translation?
- I have been asked by a publisher to do a translation. What sort of compensation should I ask for?
- A publisher has sent me a contract that makes my compensation partly dependent on their receiving a future grant or subsidy. How should I handle this?
- How can I assess the amount of work and time involved in a translation project?
- What about subsidiary rights?
- What should I consider if my translation will be published as an e-book?
- What is a reversion clause and why do I need one?
- How do I ensure that my name appears on the cover and title page, and in publicity material prepared by the publisher?
- Are there any special considerations that translators of poetry, dramatic works and expository prose should keep in mind?
Before undertaking the translation of a work, you should make sure that the English translation rights are available. If you have contracted with a publisher to translate a book, the publisher will handle acquisition of the rights. However, if you choose to undertake a translation on your own initiative, you need to do some research first. For a work in the public domain (see below), no permission to translate is required. Otherwise, you will need to find out who holds the rights—the foreign publisher, the author, or the author’s estate—and then contact the rights-holder for written permission. For published titles, the foreign publisher will almost always be the rights-holder. Before undertaking a translation, you should contact them to make sure the translation rights are available and have not already been assigned to another publisher (who may be based in the United States, England, Canada, or elsewhere). If the rights are available, you can proceed with your translation with a reasonable assurance that the work has not been assigned to someone else for translation. There are risks, however. As an individual, it is unlikely that a foreign publisher will sell you the rights to an untranslated work. It is also important to bear in mind that even if the translation rights to a foreign work are available when you make your inquiry, if they are subsequently sold to a domestic publisher, nothing obligates that publisher to inform you of that fact, or to hire you or use your translation for the published edition. Do not rely on the assurances of the author; authors rarely hold the foreign rights to published works and are often unaware of the legal niceties of rights assignment. Receiving an author’s approval to translate their work may prove useful in finding a publisher, but once the rights have been sold, even with that approval, it is the publisher who has the ultimate say in who translates the book.
You should always consult the submission guidelines for any journal you wish to contribute to, but in most cases, you’ll need a permissions letter or e-mail from the foreign publisher indicating that the signatory is the rights-holder and that the English-language rights are available. This letter will rarely grant foreign publication rights of any kind and may be provided to multiple translators. Nevertheless, the letter will serve to assure prospective journal editors and grant providers that there is no initial legal impediment to publishing the work in English translation.
Works are in the public domain if they were written before the establishment of copyright laws or if their term of copyright has expired. If a work is in the public domain, you are free to translate it without asking permission.
Under current U.S. law, works published before 1923 are in the public domain regardless of their country of origin. Works published in 1923 in countries that are signatories of the Berne Convention—which largely standardized copyright law among the (to date) 167 participating countries—will enter the public domain on January 1, 2019. A new class of works will enter the public domain every year thereafter. In other words, any foreign work that has been published since 1923 is most likely protected by copyright. An exception are works that originate in countries that are not signatories of the Berne Convention. Works that were both written by residents of non-signatory countries and published in them as well (including, for example, Afghanistan, Eritrea, Ethiopia, Iran, Iraq, and San Marino) are not protected under U.S. copyright law and are thus available for translation as public domain works.
For a helpful overview of copyright terms both in the United States and abroad, see http://copyright.cornell.edu/resources/publicdomain.cfm.
For additional information, see “When Is 1923 Going to Arrive and Other Complications of the U.S. Public Domain,” by Peter B. Hirtle, senior policy advisor, Cornell University Library. In particular, see Section 7, “What about foreign works?”, for a fuller explanation.
If you are unsure of the copyright status of a work you are interested in translating, it is always safest to consult an intellectual property lawyer.
What does it mean to copyright my translation?
Even though your translation is a derivative work—one that depends on the authorization of the copyright holder of the original, unless the work is in the public domain—you are afforded the protections of U.S. copyright law.
As a translator, you are the author of the translation. It is from this simple fact that all your other rights derive: the right to copyright the translation in your name, the right to proper acknowledgement of your authorship in the published translation and in the accompanying publicity, the right to adequate compensation, and the right to a royalty for the life of the published translation.
It was once common practice for publishers to register the copyright for the translations they commissioned in their name and to hire translators under “work-for-hire” agreements. Under this sort of contract, the translator gives up his or her copyright and the translation becomes the sole property of the publisher; the translator is paid a one-time flat fee with no possibility of earning royalties or sharing in the income from the sale of subsidiary rights. We do not recommend accepting work-for-hire agreements.
Many publishers now routinely agree to copyright a translation in the name of the translator. If the publisher offers you a contract that does not agree to register the copyright in your name, it is advisable to insist on this in your contract negotiations.
The contract will specify that you grant the publisher an exclusive license to print, publish and sell your translation throughout the legal term of copyright, or for as long as the book remains in print (see Clause 9 of the Model Contract for Literary Translations).
For further information, consult the U.S. Copyright Office Circular 14, which addresses the question of copyright for derivative works.
What are the benefits to holding the copyright to my translation?
Holding the copyright to your translation benefits you in several ways:
- It affords additional protections and continuing control over your work, for instance if it is to be sold in formats that were not yet invented when the contract was signed.
- It allows for the negotiation of royalties for a financial stake in the sale of subsidiary rights. If the proportion is specified in your contract, you would automatically receive the correct amount if the publisher negotiates a deal for subsidiary rights. For example, if your contract specifies that you get 70% and the publisher 30% of a fee, the full amount would go to the publisher and they would be responsible for paying you your share. Alternatively, you could restrict the rights you are granting—for example, grant print and e-books rights but retain dramatization rights (film, TV, stage play, etc.). By doing this, you would negotiate a fee directly with the TV or film company, for example, if your translation was adapted to any media form for which you had retained the rights.
- It allows you to pass on your royalties and the translation copyright in your will.
- It ensures that you will retain copyright even after the book goes out of print (see below, “What is a reversion clause and why do I need one?”), allowing you to sell it to a different publisher or to self-publish it, as long as the book on which the translation is based is in the public domain (see below), or you have independently secured the rights to translate the book into English.
How long does copyright protection last for a work in translation that is copyrighted in my name?
For works created on or after January 1, 1978, copyright protection lasts for the life of the author/translator plus an additional 70 years. For more information, read Circular 15a, “Duration of Copyright,” from the U.S. Copyright Office.
U.S. law does not permit the Translation Committee to endorse specific rates for translation. However, you are free to consult other translators and to search for information posted online by professional organizations in other countries. English PEN expects publishers that receive their grants to pay a minimum of £90 per 1000 words (click here for conversion). This falls roughly in the middle of the range of rates reported by members of the Translation Committee. Some publishers prefer to pay a flat fee; you should consider word count and the difficulty of the material when negotiating. For work in other genres, see the special sections on poetry, dramatic work and expository prose below. Better contracts include royalties for the translator (see Clause 5 of the Translation Committee’s model contract). In most cases, the initial fee is treated as an advance on royalties, although a small number of publishers offer contracts with royalties that start from the first book sold. In any case, you should negotiate for higher payment for the translation of a work in the public domain, since the publisher is not having to pay for the rights to the original work.
Publishers of translations often carry out their publishing programs with the help of outside grants and subsidies. But because receipt of these funds is never guaranteed, a publisher may offer you a contract that builds this uncertainty into the amount of compensation you are offered for your work. A minimum amount of “X” is guaranteed, and a larger sum of “Y” is promised if the grant or subsidy is received.
If you’ve been offered this type of contract, it is in your best interest to ask the publisher several questions. What grant will be applied for and in what amount? Have they received grants from this source in the past? When will they know if the grant has been awarded? What other titles has the publisher translated with the help of grants, and were the translators paid in full in the end? Ask the publisher to be as upfront as possible in writing about the grant or subsidy they are applying for and their success at getting them in the past from this specific source.
You should also consider the minimum amount offered. In the worst possible scenario, can you live with that? If not, you should negotiate it upward to an amount that would be acceptable to you. Remember, by signing the contract, you have agreed to deliver a finished manuscript. The publisher, on the other hand, is only obligated to pay you the minimum amount set in the contract.
You should also ask that the contract stipulate that if the grant is not received, whatever compensation you are given will be treated as a fee, not an advance, and that royalties will begin with the first sale. Under this scenario, royalties should be set at a higher rate.
It is highly inadvisable to sign a contract that makes your compensation entirely dependent upon the receipt of a subsidy from an outside source.
Normally, projects break down into two parts: the actual translation and the production work—working with the copy editor before publication. Typically, you will be paid only for the translation itself, although there are some publishing houses that offer compensation for the editorial work as well.
Actual translation time: You need to have a general idea of how long a translation will take in order to negotiate both the fee and the deadline. Once you do a little math, you will be able to judge if the compensation is acceptable and the deadline feasible. The best way to do this is to translate a few pages to get a feel for the complexity of the text, to see how easily the author’s voice comes to you, and to judge how much research the work will involve. Once you have a unit of text (1,000 words, a page, a paragraph, a quatrain) or of time (an hour), you can extrapolate to the entire work to calculate how many hours/days/weeks it will take you. Divide the proposed fee by the hours to get an idea of hourly wage, if that is an important consideration in your decision. Once you know how long the translation could take, you can have a realistic discussion of deadlines.
Additional and unpaid time: Very often, as translator you are expected to act as the author of a work, that is, you will be the one to read the copyedited manuscript and respond to editors’ queries. You may also be expected to correspond with your author to make collaborative changes. If your contract says so, you will also have the opportunity to read the final proofs. All this takes time and is part of your work as a translator. Depending on the production schedule, you might have only a few weeks, or even days, to go over a novel. This precludes doing any other paid work in that period, so you should factor that into your estimate of the time required to complete the project.
Subsidiary rights refer to film, television, dramatic rights, book clubs, serial rights, audio books, and so on. (for e-books, see below). These rights may be spelled out individually in the contract. If you know, for example, that the English translation is likely to be used as the basis for translations into other languages, or as the basis for a film script, that should be another point for negotiation.
Because digital publishing is still a relatively new phenomenon, there are few hard and fast rules about what to expect in a contract.
The basic rights of a translator established for works in print—to have the work copyrighted in your own name, to have your name appear on the title page of the work and in all publicity and advertising copy, to retain or regain rights to the translation after a set period of dormancy—should not change in any digital format. Your contract should reflect this.
Additionally, because of production costs and advances that are typically lower for stand-alone e-books, royalties should be higher for digital editions than they are for print. Clause 5 in the Model Contract for Literary Translations addresses royalty terms covering the publication of an e-book edition of a work also in print. Some translations are now being published exclusively as e-books—this is still an evolving model, and there can be significant variation in the fee/advance vs. royalty structure from publisher to publisher.
As the translator of a work, your assignment of copyright to the publisher “for the full term of copyright and all renewals and extensions thereof” (see Clause 9 of the Model Contract for Literary Translations) is limited only by the reversion clause that stipulates that the rights to the work “revert” to the translator once the work is out of print. It is in your interest for the contract to define precisely how the status “out-of-print” will be determined (often by the number of copies sold or volume of sales over a given period). This definition should take e-books into account. It may also consider the publisher’s marketing of the work (for example, whether it is available on the publisher’s website and listed in the most recent catalog). One possibility, if the publisher’s contract with the author of the foreign-language work already contains a reversion clause, is to stipulate that the rights to the translation revert to you at the same time as the rights revert to the original author (see Clause 10a of the Model Contract for Literary Translations).
Again, these are contractual matters. Your contract must stipulate that your name appear on the front cover and title page of all editions of the book, and in all publicity and advertising copy released by the publisher. It must also state that the publisher will print your approved biography on the back flap of the hardcover edition, on the back cover and/or within any paperback edition, and within any electronic edition (see Clause 6 of the Translation Committee’s Model Contract for suggested language).
Whenever possible, it’s good practice to establish a direct relationship with any poet whose work you intend to publish in translation. You may be fortunate enough to develop a collaborative relationship in some degree. In many cases poets retain the rights to their work and can give you permission to publish the translation. Even when the rights to a poet’s work are held by a third party, such as a publishing house, the poet may still be the best liaison for acquiring those rights from a publisher who stands to benefit little if at all financially from your translations.
If a poets is no longer alive but their work is still under copyright, you should first contact the foreign rights department of the publisher. Usually that person will either have the ability to grant rights (in the case of magazine publication) or to sell them (in the case of a book), or will know who does have that ability in cases where the family or an estate is in control. It is important to sort out the rights situation early on, not only for legal reasons. You may undertake the work only to discover after doing so that the publisher (or family or estate) has already granted exclusive rights to another translator.
Fees for poetry translations tend to be symbolic at best. The UK Society of Authors suggests as a starting point a minimum fee of £1.10 per line and £35 per poem (click here for conversion). Unless the translation is commissioned or solicited, you will probably be undertaking this work mainly as a valued service to the field. Your primary concern should be to ensure that you are prominently identified as the translator of the work, whether that is a single poem, multiple poems or an entire collection, and that you retain copyright in your translation.
The translation of a play generally falls into one of three categories:
•An exclusive translation (i.e., the translator is exclusive translator of that play or all works by that particular author/playwright)
•A new or non-exclusive translation of a published play by a living or dead playwright that has been performed in another language
•The translation of a play that is unproduced or is in pre-production for an English language premiere
The majority of play translations in the U.S. are done as work for hire. Exclusive translators of a specific play or playwright often negotiate a split of the royalties with the playwright for publication, performance and subsidiary rights. Contracts for non-exclusive translations and plays that are unproduced or are in pre-production are usually negotiated directly with the playwright. In Canada, standard practice is that the translator receives a percentage of royalties from any performances that make money. A translator’s contract should always include a clause requiring acknowledgment of the translator by name in all future productions and publications.
Publishers of expository prose, especially book-length scholarly works, frequently offer work-for-hire contracts and fees based on word counts, with the publisher retaining the copyright to the translation. However, it is always worth making a case for a fee that reflects the work you are expected to do above and beyond translating a certain number of words in addition to stipulating contractually that your name will be featured prominently on the book itself and all promotional materials. Two special considerations should also be kept in mind:
(1) You may be required to do a considerable amount of bibliographical research to find English-language originals or published English translations of works cited, and to provide complete references in conformity with Anglophone publishing conventions. In preparing a sample, you can estimate the amount of time this research work will add to your total and make the case for an additional fee or a higher per-word rate.
(2) You may be asked to translate an existing index (translating the terms only), to transpose an index (translating the terms and indicating the corresponding page numbers at the proof stage), or to create and complete an index from scratch. In the second and third cases, the work involved cannot be captured by a word count alone; you should reserve the right to decline to transpose or create an index, or should negotiate an additional fee for agreeing to do so.