Do translation rights ever supersede public domain status?

Question

I have an English-language public domain novel that was published in mid-19th century. I'd like to translate it to a different language and publish it in the United States. I know that professional translators can sometimes acquire exclusive translation rights to a work. Is it possible a translator has rights to translate a work to a specific language and by my translating the public domain work to that language? In that case, would it be illegal for me to sell a work that is a translation? Would it violate their copyright or other rights to it?

Answer 1

united-states

Translations are a type of derivative work, as described in Circular 14: Copyright in Derivative Works:

Common derivative works include translations...

The following are examples of the many different types of derivative works:

...

• A translation of an novel written in English into another language

Authors enjoy an exclusive right to authorize derivative works based on their original work during the lifetime of the copyright. Once the work enters the public domain, however, anyone may create a derivative work from it without requiring any permission whatsoever:

A work that has fallen into the public domain... is also an underlying “work” from which derivative authorship may be added, but the copyright in the derivative work will not extend to the public domain material, and the use of the public domain material in a derivative work will not prevent anyone else from using the same public domain work for another derivative work.

However, the previous translator holds the copyright of the new material of that translation, such as phrasing, word choice, and other stylistic decisions made during the translation process. If the new material of your own translation is too similar, you may be accused of violating the translator's copyright in the translation itself, separate from the (lapsed) exclusive rights given by the author.

Answer 2

I know that professional translators can sometimes acquire exclusive translation rights to a work.

I think this can only be true if the original work is under copyright. Then the copyright owner can assign translation rights exclusively.

Since your original work is in the public domain, there's no copyright owner who can assign any exclusive rights to it. Therefore, anyone can make a translation.

Copyright in any particular translation would be owned by that translator (or their employer if it was a work for hire). For example, the UK Crown owns the copyright on the King James Bible, a specific translation of the original Bible compiled over a millennium ago. But anyone should be able to make their own translation of the original material.

If your translation is too similar to someone else's, there will be a natural presumption that you copied it rather than creating it independently. For a work of any substantial size, there are likely to be enough different ways to translate many of the phrases that it would be considered an unlikely coincidence if the majority are identical. You should be prepared to show how you performed your translation without reference to the previous one that it resembles.

You might argue that there's essentially only one way to translate each phrase. In that case, there may be little creativity in the translation (it's essentially a mechanical process of word replacement), so no copyright should exist in the translations at all. Generally, only creative works can be copyrighted (although this depends on jurisdiction -- some allow copyright based on "sweat of the brow" in the creation process).