A US friend would like to translate literary works published in Farsi. What should they do (if anything) to ensure this is legal assuming the works are not yet in the public domain?
Or do the publishers of the translated texts, not the translators themselves, need concern themselves with copyright?
And, if the literary works were published only in Iran, is there any additional legal issue given sanctions? I imagine securing copyright might be difficult in such cases.
A literary translation is unambiguously a derivative work protected by the copyright of the original untranslated work. So if the source work is not in the public domain, a translation cannot be published without permission from the holder of the original copyright under U.S. law.
Some countries other than the U.S. allow translators to make translations of copyrighted works not available in that country's language if certain conditions are met (e.g., a certain number of years have passed since the original was published and no translation has been made by the copyright owner). This usually takes the form of a right to a mandatory license similar to the U.S. law mandatory licenses available for cover versions of copyrighted songs. I do not know if Iran is such a country.
But Iranian law matters because infringement in Iran would be primarily enforceable in Iran's courts under Iranian law which does not follow the international norms in this area despite having its own copyright laws. As explained by one translator of U.S. works into Farsi (quoting a legal expert on the field):
"Iran and the United States don’t have a copyright relationship. There are copyright laws in Iran, but Iran doesn’t follow international copyright laws, and that makes things more complicated. Iranians often publish and translate American texts without permission. However, as you know, many U.S. publishers won’t publish a work without permission. In general, the best course is to follow the international copyright laws.
“For older works, there is obviously no problem. It should also be easy to get the rights from most living authors. Many Iranian writers include copyright information in their books and ask that permission be secured before their work is used. Sometimes when you contact them they may also ask for compensation, especially in the case of a famous prose author.
“It is more complicated, however, when an author has recently died. I believe the rights can be retained for a period of 30 years after the death of the author. I would try to see who has the rights – usually a person designated by the author or a family member – but this may be hard to determine and substantiate. For example, for Forugh her sister held the rights and for Shamlu his wife has the rights. You can ask the Iranian publishers for information, and you can even get permission to publish from them, though they may not be interested in helping unless they get paid. Their consent also doesn’t guarantee that they had the permission of the author or the author’s heirs to begin with. I know of anthologies published in Iran that included my friends’ poems without their having authorized the publication, even though there are copyright laws in Iran[.]"
So, in short, it's complicated.
Or do the publishers of the translated texts, not the translators themselves, need concern themselves with copyright?
It is up to the translator and the publisher to decide between themselves who will take responsibility to obtain the necessary permission to make a translation, or in the alternative, to clearly establish an exception to copyright laws such as a mandatory licensing provision, under the relevant national copyright laws.
is there any additional legal issue given sanctions?
It is quite likely that there would be issued related to international sanctions against certain kinds of business and non-commercial interaction with Iran. U.S. law establishes many sanctions against Iran. But this would depend upon how the business side of the translation and publication of translated work was structured.
For example, if the translator moved to Iran to do the translation where the translated work was then published and distributed within Iran by an Iranian company with no ties to any specifically named sanctioned individuals (and the book translated had no intrinsic national security implications), there is a good chance this international sanctions would not have to be a consideration.
There aren't enough facts present to know in the question to know if international sanctions against Iran would be implicated. And, to be perfectly honest, I'm not entirely sure precisely what facts would be more important in this highly technical area of international law. The many individual sanctions have each been crafted on basically a piecemeal basis, so to know, one would really have to delve into each of them, one by one, to be sure.
