Thursday, March 7, 2013

Translation Rights: Nei Shu Hui Hanyu Ma?*

As you already know, Subsidiary Rights are "rights to publish or produce works in different formats based on or derivative of the original work under contract.

This week, we continue our journey through John Q. Penman's fictitious publishing contract with a look at another subsidiary right: the right to produce and publish the Work in translation:

(c) "Translation Rights," meaning the exclusive rights (but no obligation) (1) to translate part of all of the Work into languages other than English, (2) to publish partial or full length translations of the Work in all forms and formats granted to Publisher in this Agreement, and (3) to exercise (or license third parties to exercise on Publisher's behalf) all subsidiary rights with regard to translated versions of the Work on the same basis as granted to Publisher for English-language versions of the Work."

This paragraph grants the Publisher three important rights, all of which are exclusive to the Publisher - meaning neither John nor his agent can contract or sell them elsewhere:

1. The right to translate John's Work into any language the Publisher chooses (or to hire third parties to do so on the Publisher's behalf).

This means that John cannot arrange for (and neither John nor his agent can sell) foreign language rights to anyone other than the Publisher. Those rights belong to the publisher alone. Note, however, the parenthetical in line 1: the Publisher has the rights, but incurs no liability for failure to exercise them. This means the Publisher can hold John's translation rights for the term of the contract (in this case, the term of copyright) and never arrange for or permit any foreign translation.

2. The right to publish translated versions of the Work as books or in any other subsidiary format granted to the Publisher in this Agreement.

This is important because if the Publisher also acquires film, TV, or similar rights, the foreign language rights to those formats are acquired also - even though those subsidiary rights paragraphs may not mention translation. Contracts are viewed as an integrated whole - yet another reason for authors to read very carefully and make sure to obtain experienced counsel before signing a publishing deal.

3. The right to hire or contract with (license) third parties to exercise the foreign language rights granted to the Publisher in this paragraph and this contract.

Most authors see this as a bad thing, and worry about who the Publisher will hire to translate and distribute the translated work. Reputable publishers don't generally hire incompetent people to translate and distribute works on their behalf, but authors should still take care.

Here, as elsewhere, the author should evaluate the Publisher's capacity to exercise the rights requested in the contract, and only agree to the terms the author reasonably believes the Publisher is able to exploit with competence.

Generally speaking, if a publisher is large enough to translate or arrange for translation of a work, the Publisher will do so if the book sells well enough and the publisher believes enough demand exists in the relevant foreign-language market(s). However, there's no guarantee a translation will be made - even if the publisher acquires translation rights.

Is that a reason to refuse the grant of rights? Not necessarily.

Grants of translations rights are proper in some circumstances and not in others. This term, like all the others, is something an author needs to evaluate on a case by case basis. 

Have questions about translation rights or any other publishing legal terms? Feel free to ask in the comments - I love to hear from you!

* (Translation: 'Can this book speak Chinese'?)

Posted by Susan Spann  Susan Spann is a California publishing attorney and the author of Claws of the Cat (St. Martin's / Minotaur, July 2013), the first novel in the Shinobi Mystery series featuring ninja detective Hiro Hattori.

1 comment:

Patricia Stoltey said...

I'd sure love it if I needed advice on translation rights, Susan. Alas, no one is beating down the doors. Maybe with the next book...