We tend to agree that translation, other than perhaps a sort of Googlized machine translation, is an art. We can all tell a good translation from a bad one. When we come across a great translation do we think we are looking at a new work of art or not? If it is a new work of art shouldn’t it be separately copyrightable, a transformative use made under the fair use exemption? The example given in this thoughtful discussion from IO: In the open, Samuel Beckett’s translation of Rimbaud’s Le bateau ivre, points up the case.
Of course the rest of Beckett’s work represents an instance of translation doubt. He wrote in French and then “translated” his own work into English. As Paul Auster tells us in his Editor’s Note to the Centenary Edition “Beckett’s renderings of his work are never literal, word-by-word transcriptions. They are free, highly inventive adaptations of the original text — or perhaps more accurately “repatriations” from one language to the other, from one culture to the other. In effect, he wrote every work twice, and each version bears his own indelible mark, a style so distinctive that it resists all attempts at imitation. No matter how deft or skillful my translations might have been, they never would have come out sounding like Beckett.” Of course the question here is irrelevant. Whether Beckett holds English language copyright in his role as author or translator is doubtless legally neither here nor there. I wonder if anyone has ever tried to translate the French version of one of his books into English (without looking at the Beckett version) or vice versa. It might be a good learning exercise.
I think the difficulty with all this is that this is not an issue that lawyers can be asked to rule on. The judgement as to whether this translation is transformative and may thus represent a new work in its own right is not a legal, right/wrong, matter of fact. It’s a judgement call and as such will be made differently by different people. You cannot prove the matter one way or the other. To me this means we need to play it safe and protect the author’s rights by adjudging all translations derivative of the source text.
Unsurprisingly publishing practice varies in this matter. No real problem with Farrar Straus’ decision that “A new verse translation” of Beowulf should be © 2000 Seamus Heaney. Nor should we be unduly exercised by Grosset & Dunlap’s omission of any copyright notice in their “Great French masterpiece of suspense and horror” The Hunchback of Notre Dame. They don’t even mention the word translation, let alone the name of the translator or even the year the book was published. Viking do what is probably now the approved practice: they say “Translation Copyright © Charles Johnson, 1977” in their version of Eugene Onegin. Schocken Books go the whole hog in their Franz Kafka: The Complete Stories: they claim the whole kit and caboodle as “Copyright © 1946, 1947, 1948, 1949, 1954, 1958, 1971 by Schocken Books, Inc.” — so take that Kafka! My Bertelsmann Lesering translation of The Divine Comedy into German is tersely marked “© by Atlantis Verlag AG., Zürich”. That “by” is intriguing: in English. I guess Germans think © is an English word too? Good practice nowadays does seem to be © original author, plus © translation.