Translating Rights: The International Public Domain and Multiple Translation
Jul 05, 2023 | Law Student Blog,
by James Robert Bilhartz, Washington University School of Law, Juris Doctor Candidate, 2025
Without translation, many of our favorite literary works would be inaccessible. Masterpieces like Crime and Punishment and One Hundred Years of Solitude would only be available to those with strong proficiencies in Russian or Spanish. Thankfully, translation has empowered creatives to reach global audiences, but it implicates an entangled mess of international copyright law. The following blog article discusses two elements: when an international text enters the public domain and what rights are implicated when a text is translated while still under copyright.
International Copyright and the Public Domain
Determining when a work enters the public domain is a complex task. This is because the United States has an idiosyncratic legal history with international copyright. Many countries became signatories to the international Berne Convention in the late 1800s, establishing shared standards for copyright. The U.S., however, did not join until 1989, and even then, the US did not acquiesce to all provisions, retaining registration requirements that remain the subject of controversy in federal courts to this day.
Generally, if a text was first published outside of the United States before 1928, it has since entered the public domain. This means translators are free to work with the source text freely, regardless of whether it was subsequently published in translation in the United States.
After 1928, however, things get tricky. A lot of the confusion stems from whether a publisher was compliant with U.S. registration requirements after publication. However, determining this can be complicated, and when in doubt, it is best practice to assume the publishers were compliant so as not to infringe copyright. The rest of this post assumes compliance.
If a work was published before 1978, it will enter the public domain 95 years from its first publication. If published in or after 1978, it will generally enter the public domain 70 years after the death of its author. However, if the work is authored by a corporation, it will generally enter the public domain 95 years after the first publication or 120 years after creation, whichever comes first.
If the work is not in the public domain, one needs to acquire the permission of the rights holder before making a derivative translation. Furthermore, there are many special circumstances and each work must be considered separately, so one should always consult an attorney before embarking on a potentially costly translation project.
Double Translation for Texts Still Under Copyright
If a foreign text is still under copyright, can it be translated multiple times into the same language? The answer is yes, but the rights implications can quickly get complicated.
There are many reasons for a text to be translated multiple times. Perhaps the first translation was too domesticated or “foreignized” for its target culture. Perhaps stylistic choices made by the translator have since become dated. Perhaps a young translator just thinks they can do a better job. Whatever the reason, the primary question when attempting to re-translate a work under copyright is “who owns the rights?”
If a text was originally translated for hire (that is, specially commissioned by a publisher), then the rights to the translation belong to the commissioning party and their approval would be necessary to make a derivative work. An example of this would be the 1989 and 2000 translations of Murakami Haruki’s Norwegian Wood. The 1989 Birnbaum translation was commissioned for distribution to Japanese English classes whereas the 2000 translation was commissioned for global distribution.
If the translation was legitimately produced but was not done for hire, then the translator owns the rights to their version of the translation. However, a rights owner could authorize another translation so long as there was not some outstanding contractual transfer of rights to translate in the target language in the prior arrangement. That is to say, unless the original rights holder has contracted away their right to authorize a translation in some language, they can re-authorize a translation. As such, the original rights holder is usually the person to contact when inquiring about creating a second translation.
Conclusion
Works published after 1928 are generally still under copyright, but determining the exact details of the copyright term can be confusing, as there are many exceptions. Translations are considered derivative works of the original, so they require authorization so long as the text is under copyright. Rights to authorize subsequent translations, generally, rest with the original rights holder but as always, exceptions may apply.
Our summer associate program is supported by:
