Do you lose your copyright when your work is translated?

Do you lose your copyright when your work is translated?

by Michelle Kaminsky, Esq., December 2009

You've written what is sure to be a hit song according to your record company, but the producers want to test it out in a foreign market first - your producers hired a translator.

Will your subtle lyrics and your copyright get lost in translation?

Unfortunately, that's just what happened to Brazilian bossa nova legend Antonio Carlos Jobim, according to his family's lawsuit against Universal Studios Inc. and Universal Music Publishing Group. Jobim's widow and children claim the rights to his songs were wrongly assigned to Norman Gimbel, the man who translated them from Portuguese into English.

The suit, filed in the Southern District of New York, alleges breach of contract and non-payment of royalties, stating "In a remarkable display of hubris and overreaching, the defendants purported to assign a worldwide copyright interest and administration rights in the English-language lyric versions of a number of Jobim's compositions to the party that authored those lyrics as a work-for-hire."

The Jobim family claims that Universal Studios and its publishing arms didn't own the songs' copyrights in the first place, and so had "no right or ability" to then transfer those rights to the translator; they are asking for the copyrights back and for unspecified damages because they have not received their "full allocable share" of song royalties.

Also known as Tom Jobim, this internationally-renowned composer, singer, pianist, and guitarist is most famous for penning the catchy beach tune "The Girl From Ipanema" ("Garota de Ipanema"). Many of his songs, including "How Insensitive" ("Insensatez") and "Meditation" ("Meditac‹o"), have been recorded on albums by artists such as Miles Davis, Dizzy Gillespie, and Quincy Jones.

So what is the law regarding translations of copyrighted works?

First, when talking about an international copyright, it is important to note that there is really no such thing. A claim of copyright infringement depends on the laws of the country involved in the dispute. That said, however, most countries, including the United States, are parties to international treaties and conventions that offer copyright protection to foreign works. The two major conventions are the Berne Union for the Protection of Literary and Artistic Property and the Universal Copyright Convention.

Because of the United States' participation in such treaties and conventions, your U.S. copyright will most likely stand up in an international forum.

How do you get a U.S. copyright?

In the United States, as in most countries, there is no requirement that you register your piece with anyone, as copyright automatically attaches when an original work is set in tangible form. If you do choose to register, you will acquire benefits, such as a public record of your copyright, which makes it easier to prove an eventual infringement claim, and in some cases, the ability to sue for more damages than just those actually incurred.

The process for registering your song lyrics in the United States is simple and worth pursuing if you are serious about submitting your work to producers. You must send to the Copyright Office a completed application for registration, $30 payment, and a copy of the material you want to register.

Note that song lyrics fall into the category of performing art works, defined by the United States Copyright Office as those intended to be performed directly before an audience or indirectly by any device or process. These include musical works, dramatic works such as scripts, pantomimes, choreographic works and motion pictures. For a sound recording, the process is slightly different.

What about translations specifically? A copyright owner has certain rights regarding his or her work, which include reproducing, publishing, performing, and making an adaptation of the work—this includes a translation. Therefore, only a copyright owner can authorize a translation that is to be distributed to the public. Oftentimes, however, after such permission is granted, the translator can acquire his or her own copyright for the translated work.

In the case of Jobim, the case will likely come down to who owned the copyrights in the first place. As always, the best course of action is to prepare for the worst at the beginning, which includes registering a copyright.

However, if you want to rely on your automatic copyright and not file officially, it is still a good idea to keep early drafts of your work just in case—you never know when your work may be tapped for a broader, non-English-speaking audience.