Licensing translation rights in our greatly shrinking world is becoming a greater source of revenue for United States publishers. Although not every work published in the United States has the potential for translation rights sales, it should be incumbent upon every publisher to evaluate as part of their publishing model the potential for licensing translation rights for each work that they publish. While the primary aim of licensing translation rights is increased revenue there may also be additional benefits that accrue to both publisher and author from obtaining increased overseas readership and exposure.
Other than receiving unsolicited inquiries regarding the licensing of translation rights, there are a number of methods by which an "American Publisher" may pro-actively market its titles to foreign publishers. A pro-active approach could include a combination of some or all of the following methods:
- establishing a subsidiary rights function in your company whereby the American Publisher's titles are directly marketed to foreign publishers,
- hiring an agent who specializes in translation rights licensing deals,
- using the services of publishing or distribution organizations who attend major international book shows, such as those held in Chicago, Frankfurt, London and other cities around the world, and
- using the services of on-line rights organizations.
Pre-Deal Tactics
Pre-deal tactics will vary depending upon how the American Publisher pursues translation rights deals. However, for our purposes of discussion we shall assume that an American Publisher is opening its mail and finds a letter from a "Spanish Publisher" inquiring about the availability of a particular business title for publication in the Spanish language and requesting that the American Publisher send a copy of the book for further review.
Assuming that the American Publisher has never sold Spanish language rights for this title, what now must be done if the American Publisher does not have a subsidiary rights department to handle these types of inquiries? The first thing the American Publisher must do is to check the author contract to make certain that it has obtained Spanish translation rights from the author. A quick review of the contract determines that the American Publisher has obtained Spanish translation rights and that the author's grant is still effective.
The American Publisher's next step could be the "bird in hand" approach where the American publisher sends a cover letter and a copy of the book to the Spanish Publisher stating that the American Publisher is allowing the Spanish Publisher a specified period of time to review and decide whether they want to license the Spanish language rights to the title and to negotiate a licensing agreement (the "review period"). The letter should also clearly state that there no "deal" until the parties enter into a written licensing agreement and the letter could also provide that the American Publisher agrees not to negotiate Spanish language rights with any other publisher during the review period.
Instead of the bird in hand approach, the American Publisher could take other steps such as the "investigation" approach. This approach includes an attempt to find out as much information as possible about the Spanish Publisher's business, including the number of business titles published each year, and the identity of other American publishers from whom the Spanish Publisher has licensed translation rights in the past. The American Publisher should then obtain references from these other publishers.
A third approach is the "maybe I can do better" approach where the American Publisher attempts to find another Spanish publisher who might be interested in this title so that there will be increased interest in the title that will hopefully increase the royalty advance and royalty terms. Rather than following any single one of these approaches the American publisher could combine all or some of the elements included from each of these different approaches.
Further, assuming that the American Publisher has sent the cover letter and copy of the book to the Spanish Publisher. What happens next? The American Publisher should contact the Spanish Publisher on a number of occasions during the review period making certain that the copy of the book arrived, ascertaining whether the Spanish Publisher is still interested in obtaining licensing rights to the title, and most importantly developing a relationship that goes beyond the particular title. Finally, we shall assume that the day has arrived and the Spanish Publisher has decided to obtain the licensing rights to the American Publisher's title. It is now the time to negotiate the deal.
The Deal Memorandum
Before preparing and sending the Spanish Publisher translation rights contract to sign, it would be beneficial and cost-effective to negotiate the key deal terms. The key terms will include but may not be limited to territory, royalty advance and royalty terms, term of contract, selling price for the Spanish translation and quantity of first printing. It is also important that the American Publisher realize that every translation rights deal should stand on its own merits and that the specific contract terms and conditions will vary from deal to deal and especially from one foreign language to another.
Once the key terms have been agreed upon they should be formalized in a "deal memorandum" between the parties. Then, and only then, especially if the American Publisher does not have a standard translation rights agreement, should the American Publisher prepare or have its attorney prepare the agreement for submission to and execution by the Spanish Publisher. As a word of caution, it is highly recommended that an American Publisher should never sign, especially without legal review, a foreign publisher's contract.