FAQ / PEN MODEL CONTRACT (TRANSLATION)
- How do I obtain rights to a foreign title I am interested in translating?
- What is the public domain?
- Who should hold the copyright for my translation?
- I have been asked by a publisher to do a translation. What sort of compensation should I ask for?
- 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?
- 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, the translator should make sure that the English translation rights to it are available. If the work has been commissioned by a publisher, the publisher will handle acquisition of the rights. However, if the translator undertakes the work on his or her own initiative, then some research needs to be done. For a work in the public domain (see below), no permission to translate is required. Otherwise, the translator will need to find out who holds the rights – the original publisher, the author, or the author’s estate – and then contact the rights-holder for written permission. In most cases, the permissions letter or e-mail will simply indicate that the signatory is the rights-holder and that the English language rights are available. Journals might require additional assurances (see their submission guidelines). This letter will rarely grant exclusive rights and may indeed be provided to multiple translators. Nevertheless, the letter will serve to assure prospective publishers and grant providers that there is no initial legal impediment to publication of the work.
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 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:
Additional information is available here: “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.
If you are unsure of the copyright status of a work you are interested in translating, it is always safest to consult a lawyer.
It was once common practice for publishers to copyright the translations they commissioned and hire translators under “work-for-hire” agreements. Under this sort of contract, 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.
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 have the copyright to the translation in your name, the right to proper acknowledgement of your authorship in the published translation and the accompanying publicity materials, the right to adequate compensation, and the right to a royalty for the life of the published translation.
Most publishers now routinely agree to copyright a translation in the name of the translator. It is advisable to insist on this. The contract will specify that the translator grants the publisher an exclusive license to print, publish and sell the translation throughout the legal term of copyright. Even though the translation copyright is a derivative right (one that depends on the copyright in the original work), retaining the copyright benefits the translator in several ways: it affords additional protections and continuing control over the work (for instance if it is to be sold in formats that were not yet invented when the contract was signed), allows for the negotiation of royalties for a financial stake in the sale of subsidiary rights, and ensures that the translator will retain copyright even after the book goes out of print (see section on reversion below).
Many translators are now credited on the front covers of their books as well as on the title page (which every contract should stipulate as a bare minimum; see Clause 6 of PEN’s model contract for translators for suggested language).
Q: I have been asked by a publisher to do a translation. What sort of compensation should I ask for?
As a professional organization in the United States, the PEN American Center cannot endorse compensation rates for literary translations. However, you are free to consult other translators and search for information posted online by professional organizations in other countries. For instance, English PEN suggests a fee of no less than £88.50 per 1000 words (approximately $148 as of March 5, 2014). This falls in the middle of the range of rates reported by our members. 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 PEN’s model contract). In the U.S. the initial fee is often treated as an advance on royalties, while in the U.K. royalties generally accrue starting with 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.
Subsidiary rights refer to film, television, dramatic rights, book clubs, serial rights, audio books, etc. (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 PEN model contract 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.
The translator’s assignment of copyright to the publisher “for the full term of copyright and all renewals and extensions thereof” (see Clause 9 of PEN’s model contract) is limited only by the reversion clause that stipulates the rights to the work “revert” to the translator once the work is out of print. It is in the translator’s interest that the contract 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 the translator at the same time as the rights to revert to the original author (see Clause 10a of PEN’s model contract).
Whenever possible, it's good practice to try to establish a direct relationship with any living 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.
When poets are no longer alive but are 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. English PEN suggests a minimum fee of £1.10 per line (that’s $1.80 on March 5, 2014), with a minimum of £32 ($54) per poem. 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. Unless you have a special basis for negotiating the terms of the contract (for example, the author has specifically requested you as translator), you may have to accept the terms or lose the contract. 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.