Derivatives
Costs in Translation
This topic came to my attention this week after the British Museum, already well-known for stealing from non-British cultures and people of color through the ages, used the work of writer and translator Yilin Wang without their knowledge or permission in the exhibit on China’s Hidden Century. ARTNews reported on the story today and you can also read Yilin Wang’s tweets about the issue on Twitter. For additional reading you can check out all the good tweets under the hashtag #NameTheTranslator.
This is a question I’ve had before: Who owns the rights to a translation—solely the translator? Or does the original writer have rights to the translation as well? Further, what is the copyright status of a translation? Is it the same as the copyright status of the original work?
In the case of Yilin Wang’s translations of Qiu Jin’s poetry, the latter question would apply but not the former. Qiu Jin was a Chinese revolutionary, writer, and orator who lived from the late nineteenth to the early twentieth century, and died in 1907 at the age of 31. Since Qiu Jin has died, we can calculate when the copyright on her work expired.
Copyright duration varies by jurisdiction; in the United States, for unpublished works or works published after 1978, and for which the author is known and they are not works for hire, copyright endures for the life of the author plus 70 years. (Before 1978, copyright endured for a set amount of time after creation or publication.) The United States, like most countries, is a signatory to the Berne Convention, which stipulates (among many other things) that copyright must endure for the lifetime of the author plus at least 50 years. China, another signatory to the Berne convention, protects copyright for the stipulated term of the author’s lifetime plus fifty years.
All this to say, the copyright on the works of Qiu Jin expired in 1957 and those works entered the public domain. Therefore, neither Qiu Jin nor her heirs (if any) or estate own the rights to these works any longer, and anyone may use them. Yilin Wang did not need any permission to translate her works, and the British Museum did not need any permission to include Qiu Jin’s works in their exhibit.
However, Yilin Wang’s work is new and therefore not in the public domain. Although the original Qiu Jin poems don’t require permission to reproduce, Yilin Wang’s translations do. Yilin Wang is still alive, so we do not need to consult any jurisdictional laws to know that their translational works are still under copyright. However, if we were to need to consult jurisdiction, would we go with American or Chinese copyright law in this case?
Neither: Yilin Wang is Canadian. Canadian copyright law would apply.
A translation is considered a derivative work of whatever is being translated. For instance, J.R.R. Tolkien’s translation of Beowulf is a derivative work of the original Beowulf, the underlying work. A derivative work, according to US copyright law, is
… a work based on or derived from one or more already existing works. Common derivative works include translations, musical arrangements, motion picture versions of literary material or plays, art reproductions, abridgments, and condensations of preexisting works.
—from Circular 14, “Copyright in Derivative Works and Compilations,” US Copyright Office
Translations are called out specifically because they are one of the most common derivatives of a written work. The Berne Convention does not use the term derivative work but instead refers to “translations, adaptations, arrangements of music and other alterations of a literary or artistic work.” Since that’s unwieldy I’m just using “derivative work” today.
The author of any original work has the exclusive right, as part of the natural copyright conferred on them when they complete a creative work in a fixed state, to create or authorize the creation of derivative works based on the copyrighted work. This means that while a copyright is in effect (lifetime of the author plus however many years stipulated by the author’s jurisdiction), no one but the author may make a derivative work from the copyrighted work (including a translation) without the author’s permission.
If a work is under copyright, the author may grant permission for translations to be made. When this happens,
The author of the copyrighted work retains copyright of the original work.
The author of the copyrighted work retains the right to authorize any other, future derivative works.
The person who creates the derivative work retains the copyright to their derivative work.
So if I write a book, Shelf Strife, and Joe receives permission from me to create an Esperanto translation, Breto Malpaco, I keep all the rights to Shelf Strife and Joe keeps all the rights to Breto Malpaco, but Joe does not have the right to create any further derivative work of my work beyond Breto Malpaco—he can’t make a Klingon translation of Shelf Strife, he can’t make an Esperanto translation of any of my other works, and so on. His right to create derivative work was limited to a one-time, one-project deal and if he wishes to do more derivative work based on my copyrighted work, we have to negotiate another agreement.
Now: If instead I, the copyright holder, commissioned a derivative work as a work for hire, then I would own the copyright to the derivative work (see Circular 30, Works Made for Hire).
The copyright of a derivative work is separate and independent from the copyright to the underlying work, and so they may expire at different times. It is important to note that the copyright for the derivative work can not extend the copyright protection duration of the underlying work as the derivative copyright covers only what is unique to the derivative work. This doesn’t apply to translations (the entire translation is unique), but a derivative work may also be, for instance, a new edition with some added material. In that case, the derivative copyright would apply only to the added material and the copyright of the underlying work is not extended by the publication of the derivative work.
This caused me to wonder: If the author of a derivative work dies before the author of the underlying work, does that mean the copyright protection for the derivative work will expire and the translation will enter the public domain before the copyright protection for the underlying work expires? Could the translation be public domain while the original is still under copyright?
I read a lot of legalese to find the answer to this but I’m still not 100 percent sure because I’m not a lawyer. It seems that in this particular case the original author functions as a sort of coauthor in the sense that the copyright protection duration doesn’t start ticking down till all coauthors have died, and so the derivative would remain under copyright protection for the lifetime of its creator plus X years (X depends on jurisdiction) or the lifetime of the underlying work’s creator plus X years, whichever comes later.
The reality that a derivative work carries its own copyright and does not fall into public domain at the same time as the underlying work is problematic for a lot of English-speaking people. I say that with respect and with all the love in the world for my fellow Americans who do not always remember that not everything was originally written in English. Clearly the British Museum had the same issue here, hence why I said “English-speaking” and not “American.”
What I mean is, people will Google Beowulf or Anna Karenina or the Christian Bible and assume that whatever they find is fair game to use because those original works have long since entered the public domain. However, these three works have plethoras of translations apiece, of which some are in the public domain and some are not.
For instance: Beowulf. Please note that while Beowulf is written in English, it’s not written in English that you or I reading this could understand. Unless you are a scholar of Old English, if you read Beowulf, you read it in translation. Here are some well-known translations of Beowulf and their copyright statuses:
I apologize for the inaccessibility of this table, by the way. Substack doesn’t accommodate tables so I have to include as an image.
Depending on the translation you stumble onto when you Google, you may or may not have your hands on something you can reproduce freely. Notice that the Strong translation and the Tolkien translation were made only a year apart (1925 and 1926), but because Strong died in 1930 and Tolkien died in 1976, there is a wide gap between when these editions will fall into the public domain. Wider than 46 years, possibly, as Christopher Tolkien edited his father’s translation before publication and so both Tolkiens may jointly hold copyright, in which case the Tolkien version could remain under protection for 67 more years (Christopher Tolkien passed away in 2020).
This is true of the Christian Bible as well. Nothing about the Bible makes translations of it immune to copyright law. The Evangelical Christian Publishers Association maintains a list of the ten bestselling Bibles and, of these ten, the following eight are currently under copyright:
New International Version (NIV), published 1978
English Standard Version (ESV), published 2001
New Living Translation (NLV), published 1996
Christian Standard Bible (CSB), published 2017
New King James Version (NKJV), published 1982
New International Reader's Version (NIrV), published 1996
New American Standard Bible (NASB), published 1971
The Message (MSG), published 2002
It’s important to bear in mind that just because you find an excerpt or even the full text of something online does not mean that the work is not under copyright. Copyright holders may choose to make their works, including translations, available online for free. This does not invalidate their copyright and it does not confer permission on anyone else to reuse the work—this includes the British Museum.
The whole British Museum situation with Yilin Wang’s translations is appalling, but I’m a little bit especially extra irritated because one of the exhibitors co-curators, Julia Lovell, is herself a translator of Chinese literature. I don’t see how the curators can pretend not to know that a translation may be under copyright, or that translations under copyright require permission to reuse, when one of them, you know, does exactly that work for a living.
The saga is still unfolding but the latest I’ve heard is that the Museum has apologized to Wang and offered funds in exchange for having used their translations, but also that the Museum is removing Wang’s translations from the exhibit and, therefore, they will not acknowledge Wang in the exhibit going forward.
It’s worth noting that Julia Lovell and her co-curator, Jessica Harrison-Hall, received a grant worth more than $900,000 to fund their work on the exhibit. I would love to hear why anyone involved felt it was appropriate that they should be paid but Wang need not be.
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