A message for entrants into the translators’ profession, by the author of Prohibition and The Crash, live on Amazon Kindle in two languages, each the cost of a pint at a pub.
Like a carbon-based ecosystem, the Web is full of impostors and predators. A WIYRdo is complete stranger who calls you out of the blue about a piece of work that will doubtless turn into a huge project for you if you play your cards right. Reduced to its simplest form, the set-up boils down to four words: What Is Your Rate?
This is exactly the sort of question you yourself ask when you can’t find a price tag on a shelf item. “How much is one of these?” is a perfectly valid question when you and the clerk can both clearly see the thing in question. The clerk would certainly be puzzled were you to coyly refuse to identify the merchandise. This is exactly what WIYRdos do–leaving it unsaid but implicit that they expect instant 45-day unsecured credit and that your professional retainer is absolutely out of the question.
Of course WIYR people come on as though their reasoning were deeply “ethical.” If you ask just what sort of translation they want “the” rate for, no straight answer or sample is ever forthcoming. Instead, you get hemming and hawing about how you must first sign a “confidentiality agreement.” A WIYR “confidentiality agreement” is not at all like an industry-standard nondisclosure agreement. Instead of being about specific information marked as proprietary or sensitive, a “confidentiality agreement” bristles with hold-harmless clauses, ill-dissembled threats and market allocation agreements. Some arbitrarily claim that the translator’s every single word, thought or action is as good as covered under the Official Secrets Act, that they also hold the copyright thereto and can therefore lay claim to any glossaries you prepare during the effective term of the contract. This from someone who wants you to trust them to pay you eventually.
Four separate concepts are used in setting up a sucker for the sting: ethics, nondisclosure, and the bait-and-switching necessary to deal hold-harmless clauses, preemptive copyright claims and “professional” secrecy off the bottom of the deck. This completely changes the rules of the game from what attorneys mean by the word “contract.” By their lights, the three indispensable components of every contract are offer, acceptance, and bargained-for legal detriment. Let’s begin with the counterfeits, and then compare them with the genuine article.
Ethics is a code of values to guide your choices and actions. The word is completely meaningless until you define a standard of value. If the standard makes sense, good or correct choices and actions are those that bring you closer to that standard of value, and bad or wrong choices and actions are those that betray it. This is a valuable concept, much like a $100 bill.
Just as counterfeiters make fake $100 bills, WIYRdos come up with imitation codes of ethics as though right and wrong varied by profession. WIYRdos do not know the definition of ethics yet bolster their claims with vague allusions to some “interpreter,” “translator,” or “our secret group” code of ethics. Other times they take laws written by politicians and try to fold those into agreements, as if they weren’t already binding on everyone irrespective of whether the agreement itself existed or not.
Nondisclosure is something the customer can order, much like a side order of eggrolls. There is nothing secret about a paragraph printed on the front page of a newspaper. But in the business world there may be actual trade secrets that your customer does not want disclosed. A nondisclosure agreement identifies what sort of secrets those are and specifically excludes the kind of stuff everybody already knows.
Hold-harmless agreements transfer liability from one party to another. Such clauses are illegal in construction contracts in the state of Texas. Nevertheless there are situations in which any who sign one can burden themselves with additional risk–but no additional compensation to offset that risk. One tactic for pressuring you into signing such a thing is to insinuate that it is your responsibility to accept that extra liability and even shell out additional money for an insurance policy. In some cases, liability for the WIYRdo not liking the translation–and therefore not deigning to pay for the work–is shifted to the translator.
Market-allocation agreements are prohibited under the antitrust laws of the United States. Government prosecutors are very careful to avoid any clear definition of this concept, but they have no problem at all filing criminal informations and asking for indictments once they think they recognize one. Broadly speaking, these are agreements whereby you agree to refuse work from people you don’t even know how to identify, even if they find your website, call you and offer you the work. Price-fixing agreements may also fit this category–look it up on the Web. Many young translators sign these things with no idea that they are illegal. People who write malignant contracts are careful to include language to the effect that if some part of the agreement is declared illegal or unenforceble, the rest of it is still binding.
Good contracts, the ones with offers, acceptance, and bargained-for legal detriment are completely different. There must be an offer. A declaration that you might be paid if the customer “likes” the product does not qualify as an offer. There must be an acceptance, and your signature on a contract they haven’t bothered to sign is not the sort of thing you can realistically ask a judge to enforce. The whole point of most contracts is to get paid for doing something you had to go out of your way to do.
Bargained-for legal detriment is the goods or services part of the contract in which you agree to do or sell something you would not already be doing as a matter of course. It is the deliverables part of the quid pro quo that the client is willing to buy. Whether or not the service was performed with professional competence matters to a judge, so those two words are nice to include. You are under no obligation to offer free nothing-down credit to complete strangers, but do make it clear that extra stuff costs extra.
Getting paid is ultimately what professional translation is all about. If the translation was done to specifications and executed with professional competence, you should have no problem getting value for value unless you sign something really dumb. People ask me to sign dumb stuff all the time. If someone sends a bad or unsigned contract, it’s OK to send them a counteroffer already signed–and they’ll sign if they really want to hire and pay you. If they are dead set on a nondisclosure agreement, have one all ready to go.
The forms writers fill out to register a copyright make it clear that rights to a work for hire belong to the customer, not the translator or copy writer. This whole business of working for hire hinges on that business of getting paid. If you do not get paid, the job is not really a work for hire and you might be able to file a Form TX, pay an $80 copyright registration fee and then sell the copyright to whoever ordered the work.
To avoid this sort of factoring, cheaters can include specific, unnecessary (unless they intend to burn you) verbiage giving them the copyright regardless of whether they pay you or not. Another such dodge is to insist that only some distant court has jurisdiction to settle disputes over this contract. But it goes without saying (and is written in law) that if someone in North Dakota does not pay the balance outstanding, you normally expect to deal with their County Court to seek redress. This jockeying for position in agreements is called the Battle of the Forms. Many clients are attorneys, understand bids at a glance, and sign them. People who disapprove of straightforward bids don’t sign them–and greatly simplify a translator’s life. Bad customers exist for your competitors to deal with.
Used bookstores sell audio recordings of lectures on subjects like contract law, and I recommend these. Many of these recordings are intended as study aids to help law students pass bar exams, but they are very helpful to translators and interpreters interested in surviving in the business world as independent contractors or merchant translators.
Nothing contained here is legal advice, for I have paid for no license to practice law. But translators are permitted to hold forth on the meaning of the occasional word or legal expression, and to make declarative statements about things observed in practice as a professional interpreter and translator. That is all I have done here, on the off chance that it might prove useful. I wish I had known these things when I started out living by my wits.
People with thick accents and pathetically poor grammar imagine they might compete with degreed professionals by signing anything that is placed in front of them. But there are predators willing to take advantage of vulnerable foreigners and not pay them a penny for their work–whether as prostitutes, orange-pickers or wannabee translators. No contract or wishful thinking will make up for lack of ability. I heartily recommend taking translation tests and finishing college. – portugueseinterpreter.com
UPDATE! The Freelancers Union (not collectivist goons) has posted online a new Contract Generator for legalese-challenged freelancers in all fields of endeavor.