How do I go about acquiring the rights to a foreign title I am interested in translating and shopping around to publishers?
Translators should keep in mind that translation rights are generally sold or granted to publishers, notto translators, and that it is generally the publisher of the translation who selects the translator, not the original author or that author’s publisher. A prospective translator should not start by asking the author about the status of translation rights to a particular work: the author may say that those rights are available and encourage the translator to begin without knowing who controls the rights. The translator should contact the author with rights questions only if the publisher confirms that the author has retained foreign language rights. When proposing a work in translation for publication, the translator should clearly indicate the foreign rights holder of the work to all publishers contacted.

The publication of an unauthorized translation of a copyrighted work is piracy. In the event that a translation is undertaken independently (i.e. not as a commission from a publisher), the Translation Committee recommends that the prospective translator investigate who controls the translation rights, and then obtain written permission from the copyright holder. It is always wise to determine whether translation rights are available before investing time and effort on the translation.

For works not in the public domain, the right to publish a translation is, under present copyright law, a derivative one that requires the consent of whoever owns the copyright in the original work. The prospective translator of an untranslated work should first contact the foreign rights manager of the publisher of the original work. This person’s name and contact information can generally be found in the International Literary Market Place (ILMP), which is available at the reference desk of most libraries. Questions to ask the foreign rights manager are:

1) Has a publisher already acquired the right to publish [an English] translation of this work?

2) Are any publishers currently considering the work for publication in [English] translation?

3) Have any publishers rejected the work for publication in [English] translation?

4) Are there plans to submit the work to other publishers?

What is a work-for hire? Is it ever acceptable?
The Copyright Act of 1976 (§101) defines a work made for hire as:

(1) A work prepared by an employee within the scope of his or her employment; or

(2) A work specially ordered or commissioned for use as a contribution to a collective work, as part of a motion picture or outer audiovisual work, as a translation, as a supplementary works, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a ‘supplementary work’ is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an ‘instructional text’ is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

In certain situations—anthologies, publications involving multiple translators, and magazines—the publisher may propose that a translator accept a work-for-hire agreement. In such cases the translator has no copyright in the translation and all rights to the translation are owned by the publisher. While a work-for-hire agreement may provide the translator with a higher flat fee, the translator receives no royalties, no share in subsidiary rights income, and no control over subsequent editions of a work. Work-for-hire contracts between translator and publisher must be explicit about terms. Although under such agreements the publisher is designated as the copyright holder, the translator may ask for payments beyond the initial flat fee. However, given the restrictions associated with them, the Translation Committee does not recommend that translators accept work-for-hire agreements.

What happens when a translation to which I have the copyright goes out of print? How do I assert my rights?
Arbitration.

Sometimes an arbitration clause may be needed in the contract. Most contracts do not contain this provision, and fortunately it is rarely necessary. However, some translators have encountered problems that require arbitration, especially when the author of the original work has the right to review the translation. The issue involved is the delicate one of the “moral rights” of the author conflicting with the “paternity rights” of the translator, as defined under the Berne Convention. The Committee feels that if it is deemed necessary, the solution set forth in the added clause below would be the most equitable for all concerned:

“Should the translation as submitted be deemed unsatisfactory by the Publisher, the Translator may ask that the translation be submitted to examination by a three-member panel of qualified translators, one member to be chosen by the Translator, one by the Publisher, and the third member by the two panel members thus designated. The costs of such arbitration will be borne by the Publisher, and the panel’s findings will be binding.”