Rights, Contracts, and Electronic Books: Part 1
A guest post in two parts by Roger Greenwald
Background on rights
Is a fee an advance?
The following reflects both my experience and my opinions. I am not a lawyer, and this does not constitute legal advice. I have had most of my contracts for publication looked over by a lawyer who specializes in this field, especially when I was starting out. This has prevented various problems from arising later. So it’s a good step to take if you can afford it. If not, it would help to read a book about authors’ rights and contracts.
This post originated as a response in an online forum to a query from a translator about rights and royalties in relation to e-books. Some of it is relevant to publication in all formats. It addresses the situation in the US and Canada; translators in other regions should not assume that everything I say here applies where they are.
Background on rights
You own the rights to your translation unless you sell all the rights completely to a publisher. Whether you retain ownership of the rights in the translation does not depend on how you were paid, in what form, or how much. It depends on the wording in the contract you signed. Ordinarily (if you are careful or have read a book about it or have legal advice), you license the right to publish your translation in specified forms for particular uses, and you would not assign or transfer your rights. Which uses you license are stated in the contract. Most publishers will try to get every right there is, but you should give them only what they really need and will make use of, and you should know – and the contract should specify – what the payment will be for each use (e.g. royalty or fee).
Registration of copyright is a separate step. You have copyright in your work without registering it, but registration can be important. Usually it is the publisher that registers the copyright in a published work; your publishing contract can obligate a publisher to do so, preferably in your name. (Do not assume the publisher will register copyright if the contract does not obligate it to do so. You can register the copyright yourself, even long after publication.) It is easier to sue for copyright infringement in Canada and the United States if the copyright in your work has been registered. In the United States, but not in Canada, registration is necessary if you wish to obtain a monetary award or “statutory damages” without providing evidence of financial damage you have suffered. In the United States, you must always register before you can sue for infringement of a “United States work.”
(Note that registration of copyright in the United States is too complex to cover here except in broad strokes. It is prudent to register the copyright for a “United States work” – the definition of which is complicated but includes all works first published in the US, all unpublished works by authors who are American residents or American citizens regardless of where they reside, and some works simultaneously published in the US and elsewhere. The question of whether to register unpublished works is further complicated by two factors of recent origin: first, uncertainty about what forms of electronic “circulation” may be considered publication, especially in Canada; and second, the shift by many magazines and publishing houses to requiring that submissions be made electronically only, a practice that makes plagiarism, including outright theft of whole books, much easier than it used to be.)
Your contract should provide that if a book goes out of print and is not reprinted within a stated time, the rights in the translation automatically revert to you. Some contracts require that, for this to happen, you must inform the publisher in writing that you wish the book to be reprinted. But reversion of rights should not be at the discretion of the publisher. Nor should it depend on whether the publisher sends you a letter confirming reversion, although it is nice to have that. (Note that whether a work is “out of print” can be unclear in the age of print-on-demand, not to mention e-books. This issue is further complicated by definitions of “in print” that include availability of a work in electronic form.) If the author of the original underlying work (or other rights-holder) has signed a separate contract with the publisher, your contract should specify that your rights in your translation will revert to you automatically at the same time as rights revert separately to the original author.
According to my literary lawyer, who speaks from wide experience and from knowledge of large numbers of contracts, an industry standard on royalties for e-books (in North America) seems to be evolving to this: 50% to the publisher, 50% to the rights-holder(s), calculated on net revenues – despite the fact that some major publishers are offering only 25% to rights-holders. Net revenues should mean the amount the e-book publisher receives (this may be the retail sales price if the publisher is selling e-books directly from its own website, but it may also be quite a bit less than the retail price on sales made, say, through Amazon, Barnes & Noble, Kobo, etc.). So net means retail minus discount to the retailer. But it should not mean the amount the e-book publisher receives minus the publisher’s expenses.
That means that if, say, American Publisher ABC publishes your translation of a novel, and if you have an agreement with the author to share revenues 50-50, ABC would keep 50% of its revenues from e-book sales and the author (or other rights-holder of the underlying text) and you would each get 25%. If you do not have an agreement with the author (or if for one reason or another the author has no say in the matter), you will have to negotiate with the e-book publisher.
The percentage you receive is an ongoing royalty on sales. I would not accept a flat fee without any royalty for an e-book (but then, I would not sign a contract without a royalty for any sort of publication of a literary translation). For one thing, doing so would violate a principle both ALTA and PEN have fought hard for: that translators should always get a royalty (more about this below and in Part 2). For another, I think it would often be a bad deal, given the potential sales and low costs of e-book publishing. (The “long tail” of potential buyers for “specialized” books is much easier to reach online, and e-books are much easier to keep in print indefinitely than are paper books.)
Because an e-book may stay in print forever, you should grant an e-book-only license for a fixed term of years; or, in a contract that authorizes both e-book and print editions, the terms should indicate that keeping a book available electronically does not prevent you from reverting all publishing rights when the print book is no longer available. If you want your out-of-print book to become available in print again, you should bear in mind that some publishers will not publish a print book without also being able to publish it as an e-book. In any case, most publishers will agree to a contract clause that allows authors to revert their e-book rights if the publisher hasn’t made a specified minimum number of sales during the most recent royalty periods.
Is a fee an advance?
A further issue arises if the book has not been previously published and is not to be published on paper at all. This issue in fact arises with respect to conventional print publication as well. Namely: If the publisher pays the translator a lump sum up front to do the translation (often from a subsidy granted by an agency in the “home” country of the underlying text), shall that payment be regarded as an advance against the translator’s royalties, or not? This is a negotiable matter, and the answer doesn’t have to be Yes or No. For example, a contract could specify that part of any up-front payment (either the first X dollars or all dollars in excess of a specified amount) is to be treated as an advance. This might be especially useful when a contract must be signed before it is known how much a foreign agency will grant. (My view is that any amount supplied by an agency in a book’s country of origin should not be treated as an advance against royalties. Authors often receive grants to help them to write books; when the books are published, they receive a share of earnings in the form of royalties. Likewise, translators who receive funds that originate from granting agencies should also receive a share of earnings in the form of royalties. Subsidies intended to help publishers cover the “additional cost of translation” are not meant to exempt publishers from paying translators their share of earnings from their work.)
Similar issues (to all of the above) arise for audio books.
Stay tuned next Wednesday when Roger will offer Part 2 of this guest post and address the following topics:
Fee vs. royalty: in principle
Fee and royalty: in practice
Royalties are insurance
ROGER 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.