TAKING THE FEAR OUT OF CONTRACTS
In September, Courtney Searls-Ridge helped NCTA members get an edge on their contract negotiation skills.
BY MARTINA BURKERT
Excellent language skills are essential for freelance translators and interpreters. To be successful, however, good business skills are also necessary. In addition to marketing and negotiation, linguists are required to understand contracts and accurately assess their content, and this dimension is becoming more complex and challenging.
On September 28, 2013, Courtney Searls-Ridge presented a workshop in San Francisco organized by the NCTA to help new and established translators and interpreters develop this aspect of their business. As a former agency owner and current teacher of ethics and business practices for translators and interpreters, Courtney is intimate with the concerns of freelancers as well as T&I agencies.
Courtney began the workshop by asking us to write our major concerns on cards from which we selected several important issues. Then she wove these concerns into the workshop.
“A contract reflects a bargained exchange for some legally sufficient (valuable) consideration.”
The elements of a contract are “offer” (or counteroffer), “acceptance” of the offer, “consideration” (e.g. money for services), and other prerequisites. According to Courtney, written contracts may not always be necessary; an oral contract is just as binding but harder to prove when there is a dispute. Courtney recommended to always follow up with at least a short email stating the content of any oral agreement. In some cases written contracts are absolutely necessary, e.g. with book publishers. Agencies usually require freelancers to sign a service agreement covering the terms of an ongoing working relationship. For a particular job, a short email exchange may be sufficient. Contracts with end clients depend on the frequency of the relationship and the size of the job—it shouldn’t take longer to read the contract than to complete the job.
Among the freelancer’s concerns, Courtney listed terms of payment, deadlines, revisions to source text, revisions to translation, cancellation, attribution, copyright, ownership of TM and/or glossary and royalties, implying the need for addressing the requirements of each particular contract.
We briefly discussed TM and glossary ownership for which there is still no clear convention in the industry because sometimes the linguist, the end client, and the agency all contribute. For book translations, the translator should have the choice of being named or not.
The main concerns of T&I companies are independent contractor status, profitability, liability, confidentiality, fulfillment of obligation, and protecting their interest in the end client. Courtney also emphasized that many parts of the contracts offered to language professionals reflect the agency’s responsibility to the end client. In order to understand a contract, freelancers need to appreciate the concerns of the agency, too. Courtney also stated that a reasonable contract should not require more from the freelancer than is necessary to protect the agency.
The decision: To sign or not to sign?
In the second half of the workshop, we discussed several questionable examples excerpted from contracts. Courtney recommended negotiating and possibly changing objectionable language with the agency. Reading and negotiating a contract proposal can give valuable insight into the practices of the agency.
It is not always easy to determine what is reasonable in a contract, and willingness to sign a contract depends on an individual’s comfort level with some aspects of risk. Courtney said several times that independent contractors should always pay attention to their gut feeling about a specific client or contract, and several of the experienced attendees agreed.
Freelancers should not be restricted in their business, e.g. by overly strict non-soliciting clauses or not being able to protect their interest in cases of dispute by being required to destroy all records. Some clauses, like the right to audit or inspect the independent contractor’s premises, have become more common for bigger business entities and are very unlikely to be enforced at the level of sole proprietors. Should this happen, however, it could be a breach of confidentiality of the contractor’s other clients.
Feedback is important to create a harmonious working relationship between language professionals and the agencies that engage them. Often lawyers write contracts that are not specifically tailored to the translation industry. More assertive negotiations on the part of language professionals will draw attention to potential problems in these contracts.
At the end of the discussion Courtney encouraged us all to approach new contract negotiations with confidence. MB
ATA resources (Guide to a Translation Services Agreement, ATA Translation Job Model Contract, and Guide to an Interpreting Services Agreement)
AIIC-brokered agreements (conference interpreting) model contract
PEN America Center guide to book and literary translation contracts