Rights, Contracts, and Electronic Books: Part 2
A guest post in two parts by Roger Greenwald

Part 1 is available here.

Part 2:
Fee vs. royalty: in principle
Fee and royalty: in practice
Royalties are insurance
Resources

Disclaimer

The following reflects both my experience and my opinions. I am not a lawyer, and this does not constitute legal advice. This discussion addresses the situation in the US and Canada; translators in other regions should not assume that everything I say here applies where they are.

Fee vs. royalty: in principle

A translator colleague remarked that she would rather be paid a fee up front for a translation than “wait for the royalties.”

As I will explain in a moment, this doesn’t necessarily need to be an either/or choice. I should say immediately that I think each translator has to weigh many factors and do what is best for him or her in each instance when it comes to income. But I think it is often possible to do that without undermining the principle that translators deserve to get royalties.

Historically, the payment of a fee to a translator was part of a system in which the translation was “work made for hire” (in the United States) or work done under a contract of service (in Canada); or in other words, a commissioned buyout, with the publisher acquiring all rights for the duration of copyright. Literary translators and their organizations had to wage a long campaign to get to the point where it was recognized that literary translation was a creative act, that literary translators should have copyright in their translations, and that they therefore had a legitimate claim to a share of the revenues earned by their translations (that claim is still contested in many places).

Just as fees were associated with work made for hire, royalties are associated with the more modern concept of literary translators who license use of their translations (subject to publishers’ obtaining licenses with respect to the underlying works) and share in revenues in much the same way as authors do, though very often they get a smaller slice. This is why model contracts for literary translators call for some provision for payment of royalties. And it is why demanding some sort of royalty is regarded by many (including me) as a question of principle. If I were to sign a contract for book publication that provided for no royalty, I would feel I was acceding to an unacceptable premise, namely, that I have no claim on a share of revenues earned from my work. I would also feel I was undermining the collective efforts of literary translators to gain better recognition for their profession and better compensation for their work.

Fee and royalty: in practice

All that said, how can this work in practice, in circumstances that often vary widely? We can assume that a publisher will always have a limited amount of money available to pay a translator up front. It will also have a calculation of how many copies of a book it needs to sell to break even. As far as the translator goes, lest you think I am assuming that he or she has other income, and/or that the book has large commercial potential, I will consider the worst-case scenario: the translator needs to make as much of a living as possible from translation, and he or she judges that the book in question is unlikely to sell a large number of copies.

I will have to make up some numbers for the sake of illustration. Please don’t take them as realistic, typical, etc. Suppose the publisher says, “I can pay you a $4,000 fee up front with no royalty provision, or if you insist on a royalty, I can give you 5% on net, and $2,000 as a non-returnable advance against royalties.” At first glance, the translator may think the fee is the better deal, especially if he or she judges that the book is unlikely ever to sell enough copies to yield a total of $4,000 in royalties – and especially if he or she needs the cash sooner rather than later. But what does the publisher’s offer really mean? It means the publisher has $4,000 in cash available – and wants to be able to break even as soon as possible. (The publisher may also want not to have to pay the translator more than $4,000 under any circumstances, but I will refrain from imputing motives.)

All contracts are negotiable. If I were the translator in that situation, I would negotiate as follows: “If you pay me $4,000, how many copies do you think you need to sell to break even and start making a profit?” (Answer: Y copies.) “I will agree to a royalty of 0% on the first Y copies sold. But if you start making a profit, I will need a royalty of 5% of net as my share. We can regard the $4,000 as an advance against royalties.” There might then be some back and forth, and I might in the end agree to 0% on the first Y + 250 copies sold, and a royalty of 3% on the next 500 copies after that, escalating to 5% after those 500. (This would mean it would take a very long time and a great many copies sold before any royalty payment in excess of $4,000 ever became due.)

In my experience, many publishers are willing to agree to such changes to contracts if the changes don’t require a further outlay of cash up front, and especially if they won’t have the effect of delaying the break-even point. And if publishers are reasonable, they will have a very hard time coming up with an answer to this question: “If I am licensing your use of a translation in which I own rights, and if by some fluke it ends up selling a large number of copies, why should I receive no share of the revenues?” The expectation that the book will in fact never sell a large number of copies makes it that much easier for a publisher to agree to pay a royalty on what looks like fantasized sales.

I realize that many literary translators may fear that if they ask for changes to a contract, the publisher may turn to another translator (in cases in which the book has not yet been translated) or may retract an offer to publish (in cases in which the translator has submitted a sample or even, with poetry or fiction, a complete manuscript). But a request is just that, and usually the worst that can happen is that a publisher will say, “Sorry, but I can’t make any changes.” At that point you would have to decide whether you could live with the offered terms. But it would take an unusually short-fused publisher to back out just because you asked.

Royalties are insurance

You can see that the royalty provision is a sort of insurance policy. The fact is that no one can know in advance which book will sell, or to whom, or why. The best-selling book ever published by a certain university press was a translation by two academics of an obscure ancient Chinese text. That was in 1950, and the book was the I Ching. (I don’t know if the translators had a royalty clause.) In-print English editions of novels by an author who wins the Nobel Prize for Literature may sell as many as 20,000 copies per title in a matter of weeks. I happen to know the translator of a fairly recent winner of the Nobel Prize. This translator received not one penny more from the sales of his translations after the prize was announced. Would you want to be in that situation?

Large sales can take place for all sorts of reasons. Movie tie-ins are an obvious example. But even a chapbook containing one translated short story might turn out to be something a charitable foundation wants to offer as a thank-you gift to donors; the foundation might buy a few thousand copies. (I suggest that everyone think about this for a moment before signing a contract that provides for so-called royalties to be “paid” in the form of extra copies of the book. The publisher receives money for books sold; and you cannot buy groceries with 300 books in boxes in your garage or basement storage room.)

To the extent that translators choose which texts to translate, insisting on a royalty may be considered a bet they place on their own literary judgment. I wouldn’t dare to suggest, these days, that literary quality increases a given book’s chance of selling well, but perhaps it’s not totally unrealistic to say that if you translate twenty very good books, the chances that one of them may end up selling unexpectedly well are probably greater than if you translate twenty mediocre ones (in whichever genre).

So I am arguing on principle here, but not only on principle, because I think royalty provisions safeguard translators’ material interests as well as the gains made by their profession since the era of work made for hire.

Resources

PEN American Center resources for translators, including a model contract:
http://www.pen.org/translation

The American Literary Translators Association (ALTA) Guides for Translators:
http://www.literarytranslators.org/resources/alta-guides

rg-color-v-smallROGER GREENWALD attended The City College of New York and the St. Mark’s-in-the-Bouwerie Poetry Project workshop, then took graduate degrees at the University of Toronto. He has won two CBC Literary Awards, one for his poetry and one for travel literature, as well as numerous translation awards. He has published one book of poems, Connecting Flight, and several volumes of poetry in translation from Scandinavian languages, most recently North in the World: Selected Poems of Rolf Jacobsen; Picture World, by Niels Frank; and Meditations on Georges de La Tour, by Paal-Helge Haugen. He has also published translations of one novel, A Story about Mr. Silberstein, by Erland Josephson, and one young-adult novel. He is a member of the PEN American Center and of the American Literary Translators Association.

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