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Intellectual Property Licensing: Forms and Analysis
Incisive Media, Pages: 650
CHAPTER 1
Introduction to Intellectual Property Licensing
1.01 Intellectual Property Rights
1.02 General Laws Affecting Intellectual Property Licenses
[1] Contract Law
[2] Antitrust Law
1.03 Intellectual Property Laws Affecting Licenses
[1] Copyright
[2] Trademark
[3] Trade Secret
[4] Patent
[5] The Misuse Doctrine
1.04 Types of Transfers
[1] Assignment
[2] License
CHAPTER 2
Contract Law
2.01 Licenses as Contracts
[1] United States Laws
[2] International Sources of Contract Law
2.02 Application of Substantive Contract Law to Licensing
[1] Contract Formation
[2] Warranty Provisions
2.03 Shrink-Wrap and Click-Wrap Agreements; Mass Market Licenses and Other Agreements Under UCITA
[1] Shrink-Wrap and Click-Wrap Agreements Under the UCC and Common Law
[2] Mass-Market Licenses Under UCITA
[3] Access Contracts Under UCITA
[4] Support and Service Contracts Under UCITA
[5] Electronic Self-Help Under UCITA
[6] UCITA’s Fundamental Public Policy Defense to Enforcement
2.04 Uniform Computer Information Transactions Act
[1] 1999 Official Text
[2] 2002 Official Text—Selected Sections
2.05 Form: Agreement to Contract Electronically
CHAPTER 3
Copyright and Related Rights
3.01 Purpose and Theories of Copyright Protection and Related Rights
[1] Theories of Copyright: Economic Rights and Moral Rights
[2] Neighboring Rights and Related Rights
[3] Sui Generis Rights
[4] Negotiated and Compulsory Licenses
3.02 The International Copyright Environment
[1] International Organizations
[2] Regional Organizations
3.03 Protected Subject Matter of Copyright
[1] Originality
[2] Works of Authorship
[3] Fixation
[4] Expression, Merger, and Scènes à Faire
[5] National Origin and Restored Copyright
[6] Infringement
3.04 Protected Rights
[1] Copyright and Neighboring Rights
[2] Moral Rights
[3] Limitations on Exclusive Rights
3.05 Ownership of Copyright
[1] Works Made for Hire
[2] Collective Works
[3] Derivative Works
[4] Joint Works
3.06 Transfer of Copyright
[1] Transfer Under the 1909 Copyright Act
[2] Transfer Under the 1976 Copyright Act
[3] Termination of Copyright Transfers
3.07 Duration of Protection for Copyright and Related Rights
[1] Applicable International and Regional Provisions
[2] United States Law
3.08 Form: Copyright Assignment
3.09 Form: Work for Hire Agreement
3.10 Form: Copyright Policy
3.11 Form: Third Party Intellectual Property Policy
3.12 Form: Illustration License Agreement
3.13 Form: Photograph License Agreement
3.14 Form: Graphics License Agreement
3.15 Form: License to Use Online Forum Content
CHAPTER 4
Trademark
4.01 History and Purpose of United States Trademark Law
4.02 International and Domestic Protection
[1] International Trademark Protection
[2] Federal Trademark Law in the United States
[3] State Trademark Law in the United States
[4] Common Law
4.03 Marks, Trade Dress, and Trade Names
[1] Marks: Trademarks, Service Marks, Certification Marks, and Collective Marks
[2] Trade Names
4.04 Devices Eligible for Trademark Protection and Licensing
[1] Distinctiveness
[2] General Types of Marks
[3] Special Uses of Marks
4.05 Policing and Enforcing Marks
[1] Infringement
[2] Unfair Competition
[3] Dilution
[4] Damages
4.06 Brief History of Trademark Licensing Law
[1] “Single Source” Theory
[2] Quality Theory
[3] Modern Licensing Law
[1] Hallmark of a Trademark License
[2] Hallmark of a Trademark Assignment
[3] Tax Considerations
4.08 Reasons to Enter into a Trademark License
[1] The Licensee’s Perspective
[2] The Licensor’s Perspective
[3] Settlement of an Infringement Claim
4.09 Major Issues in Trademark Licensing
[1] Quality Control
[2] Excessive Quality Control: Antitrust and Franchise Issues
[3] Product Liability
[4] Extent of Exclusivity
[5] Internet Issues: Advertising and Exclusivity
4.10 Actions for Trademark Infringement
[1] Trademark Infringement
[2] Unfair Competition
[3] Dilution
[4] Causing Marks to Become Generic
[5] Trademark Disparagement
[6] Counterfeiting of Trademarked Goods
4.11 Drafting the Trademark License
[1] Preamble and Recitals
[2] Grant Clause
[3] Compensation
[4] Quality Control
[5] Provisions Governing Use of the Mark
[6] Infringement Actions/Policing the Mark
[7] Indemnification
[8] Maintenance of Rights
[9] Licensee Estoppel
[10] Transfer or Assignment
[11] Termination Provisions
4.12 Trademarks and Internet Domain Names
[1] Domain Name Management System
[2] Registration of Domain Names as Trademarks
[3] The Legal Interface Between Trademarks and Domain Names
[4] Scope of Trademark Protection for Domain Names
[5] Domain Name Litigation
4.13 Form: Trademark License Agreement
4.14 Form: Service Mark License Agreement
4.15 Form: Intra-Company Trademark, Service Mark, and Trade Name License Agreement
4.16 Form: Trademark License as a Dispute Settlement Agreement
4.17 Form: Domain Name Infringement Letter
4.18 Form: Exclusive Trademark License Agreement
4.19 Form: Non-Exclusive Trademark License Agreement
4.20 Form: Trademark License Agreement for use in Educational Market
4.21 Form: Domain Name Transfer Provision
CHAPTER 5
Trade Secret Law
5.01 Trade Secrets Defined
5.02 Scope and Sources of Trade Secret Law
[1] The International Environment
[2] Scope of Protection Under United States Law
[3] Sources of United States Law
5.03 Misappropriation: Protection and Remedies
[1] Employee and Licensee Under a Duty of Confidentiality
[2] Parties Not Under a Duty of Confidentiality
5.04 Criminal Liability
[1] Federal Criminal Liability
[2] State Criminal Liability
5.05 Form: Sample Trade Secret Policy with Employee, Consultant, and License Forms
5.06 Form: Nondisclosure Agreement (Focus Group Testing)
5.07 Form: Three-Party Nondisclosure Agreement (Statistical Analysis)
5.08 Form: Mutual Nondisclosure Agreement (Prospective Joint Venture or Codevelopment Relationship)
5.09 Form: Mutual Nondisclosure Agreement (Prospective Outsourcing Client) [Letter Format]
5.10 Form: Nondisclosure Agreement with Proprietary Rights Clause
5.11 Form: Mutual Nondisclosure Agreement with Proprietary Rights Clause
5.12 Form: Nondisclosure Agreement Regarding Proprietary and Licensed Material
CHAPTER 6
Patents
6.01 Overview of Patent Law
[1] Types of Patents
[2] Patentability and Validity; Statutory Bars
[3] Ownership
[4] Infringement
[5] Remedies
[6] Foreign Patents
6.02 Licensing Considerations
[1] Limiting the Bundle of Rights
[2] Provisions of a Patent License
6.02A Cross-Licensing
[1] Generally
[2] Possible Advantages
[3] Patent Thickets
[4] Relationship to Research and Development
[5] Practical Considerations
6.03 Antitrust and Other Limits on Licensing
[1] Overview
[2] Applying the Antitrust Laws
[3] Antitrust Examples and Cases
[4] Misuse and Related Doctrines
[5] Tying Agreements
[6] Export Restrictions and Other Technology Transfer Limitations
6.04 Challenging License Agreements
[1] The Doctrine of Eviction
[2] Royalty Obligations on Unpatented, Publicly Disclosed Products
[3] Licensee Estoppel to Contest Patent Validity
6.05 Form: Declaration and Power of Attorney for Patent Application
6.06 Form: Assignment (Individual Inventor)
6.07 Form: Assignment (Joint Inventors)
6.08 Form: Assignment (Employee Inventor)
6.09 Form: Simple Patent License
6.10 Form: Patent License Agreement (Exclusive)
6.11 Form: Patent License Agreement (Non-Exclusive)
CHAPTER 7
The Rights of Publicity and Privacy
7.01 Overview of Rights of Publicity and Privacy and Licensing
7.02 Protection of the Rights of Publicity and Privacy
[1] Specific Laws and Regulations
[2] Scope of the Right of Publicity
[3] Duration of the Rights of Publicity and Privacy
[4] Transfer of the Right of Publicity
7.03 Generally-Applicable Terms of Releases and Endorsement Agreements
[1] Exclusivity
[2] Defining the Rights
[3] Territory
[4] Scope of Use
7.04 Additional Terms of an Endorsement Agreement
[1] Celebrity Obligations
[2] “Morals” Clause
7.04A Rights in Personally Identifiable Information
[1] Selected United States Laws
[2] Selected International Laws
[3] Contractual Obligations
7.05 Form: Recording Release (Individual Persona)
7.06 Form: Recording Release with Public Appearance Obligations (Producer-Manager-Talent)
7.07 Form: Recording Release (Institutional Persona)
7.08 Form: Location Release
7.09 Form: Materials Release
7.10 Form: Celebrity License Agreement
7.11 Form: Simple Endorsement Agreement
7.12 Form: Complex Endorsement Agreement
7.13 FTC Guides Concerning Use of Endorsements and Testimonials in Advertising
7.14 Form: Vendor’s Obligation to Protect Nonpublic Confidential Information
7.15 Form: Limitation on Use of Data Subject to Privacy Policy
CHAPTER 8
Music Licensing
8.01 Overview of Music Licensing
8.02 Key Issues in Music Rights
[1] Protecting Against Unauthorized Copying of Audio Recordings (Piracy)
[2] Protecting Against Unauthorized Fixation (Digital Sampling)
[3] Anti-Circumvention Provisions and Rights Management Information
[4] International Legislative Developments
[5] Digital Rights Management
8.03 Print Licenses
[1] Fees and Most-Favored-Nation Clauses
[2] Other Terms and Conditions
8.04 Mechanical Licenses
[1] History of the Mechanical License in the United States
[2] Contemporary Mechanical Licensing Practices
8.05 Master Use Licenses and Reuse Fees
[1] Master Use Licenses
[2] Reuse Fees
8.06 Synchronization and Videogram Licenses
[1] Determining the Type of License Needed
[2] Terms of Synchronization and Videogram Licenses
8.07 Performance Licenses
[1] Performance Rights in Musical Works
[2] Performance Rights in Sound Recordings (Webcasting)
[3] Exemptions from Music Licensing
8.08 Form: Work for Hire Agreement (Lyric Translation)
8.09 Form: Work for Hire Agreement (Musical Arrangement)
8.10 Form: Master Use License
8.11 Form: Audiovisual Work Synchronization and Videogram License
8.12 Form: Synchronization and Public Performance License for Multimedia
8.13 Form: Musical Compositions Publishing Letter Agreement
8.14 Form: Musical Composition Agency Agreement
8.15 Form: Musical Compositions Co-Publishing Agreement
8.16 Form: Dramatico-Musical Work (Play) Tour License
8.17 Form: Song Collaboration License
8.18 Form: Musical Compositions Administration Agreement
8.19 Form: Mechanical License
8.20 Form: Single Track Music License
8.21 Form: Copyright Office Form SR for a Second Recording
8.22 Form: Copyright Assignment Agreement for a Musical Composition
8.23 Form: Ring Tone Agreement
8.24 Form: Audiovisual Streaming/Downloading License Agreement
8.25 Form: License Oriented Audiovisual Streaming Agreement Short Form
CHAPTER 9
Merchandising
9.01 Introduction to Merchandising
9.02 Intellectual Property Rights Implicated in Merchandising
9.03 Issues in Administering a Merchandising Program
[1] Common Issues
[2] Issues Specific to Entertainment and Character Properties
[3] Issues Specific to Trademark and Branded Properties
[4] Issues Specific to Sports Properties
9.04 Merchandising Agreements
[1] Generally Applicable Terms of a Merchandising License
[2] Specific Merchandising Provisions
9.05 Form: Licensing Agent Agreement
9.06 Form: Designer Agreement
9.07 Form: Toy Designer License Agreement (Annotated)
9.08 Form: Cartoonist License and Merchandising Agreement
9.09 Form: Reprint Sales License Agreement
CHAPTER 10
Software Development, Distribution, and Licensing
10.01 Software Licensing
10.02 Types of Software
[1] Off-the-Shelf Software
[2] Customized Software
[3] Custom Software
10.03 Generally Applicable Terms of a Software License
[1] Ownership
[2] Scope of License
[3] Fees
[4] Term
[5] Representations and Warranties
10.04 Additional Terms for Customized and Custom Software
[1] Exclusive and Nonexclusive Licenses
[2] Copy and Modification Rights
[3] Confidential Information and Trade Secrets
[4] Delivery, Installation, and Acceptance Testing
[5] Maintenance, Support, and Updates
[6] Modifications
[7] Assignment
[8] Training
[9] Source Code
[10] Indemnification
10.05 Special Terms for Licenses to the United States Government
[1] Restrictive Rights
[2] Limited Rights
[3] Unlimited Rights
[4] Government Purpose
10.06 Enforceability of Licenses
10.07 Channels of Software Distribution
[1] Agreements with Sales Representatives
[2] Agreements with Distributors
[3] Export Issues
10.07A Bioinformatics Licensing
[1] Introduction
[2] Basic Terms
[3] Managing Risk
[4] Open Data Sources
[5] Intellectual Property
[6] Public Entity Interactions
[7] Royalty Arrangements
10.07B Open Source Licensing
[1] Introduction
[2] “Copyleft”
[3] The GNU General Public Licenses
[4] Other Open Source and Related Licenses
[5] Infringement of Third Party Rights
[6] Other Forms of Protection
[7] Open Source Issues in Transactions
10.08 Form: Vendor-Oriented Shrink-Wrap Software License Agreement
10.09 Form: Licensee-Oriented Software License Transaction Checklist
10.10 Form: Annotated User-Oriented Software License Agreement with Software Maintenance Agreement
10.11 Form: Software Sales and License-Back Agreement
10.12 Form: Licensee-Oriented Software Maintenance Transaction Checklist
10.13 Form: Vendor-Oriented Software Maintenance Agreement
10.14 Form: Developer-Oriented Distributor Agreement
10.15 Form: Shrink-Wrap End User License Agreement
10.16 Form: Click-Wrap End User Product License Agreement
10.17 Form: Individual or Network Use Shrink-Wrap License Agreement
10.18 Form: GNU General Public License, Version 2, June 1991
10.19 Form: Most Favored Customer Clause
10.20 Form: Age Verification Software License Agreement
10.21 Form: Software Evaluation License Agreement
10.22 Form: Software License Agreement on a per Database Instance
10.23 Form: Thirty-Day Evaluation License Agreement with Perpetual Option
CHAPTER 11
Dramatic Performance Licensing
11.01 Overview
11.02 What Are “Dramatic” and/or “Grand” Rights?
11.03 Licensing of a Play or Dramatico-Musical Work
11.04 Distinguishing Grand Rights from Small Rights
[1] Non-Dramatic Performance of a Song from a Dramatico-Musical Work
[2] Dramatic performance of a Song from a Dramatico-Musical Work
[3] Dramatic Performance of a Song Not Taken from a Dramatico-Musical Work and Not Used as Part of a Story or Plot
[4] Dramatic Performance of a Song Not Taken from a Dramatico-Musical Work and Used as Part of a Story or Plot
[5] Fair Use of a Dramatico-Musical Work
[6] Performance of a Dramatico-Musical Work
[7] Performance of a Concert with Many Songs from the Same Dramatico-Musical Work
[8] Performance of Assorted Songs from Several Different Dramatico-Musical Works in a Revue with Costume and Choreography, or as the Music for a Newly Created Play
11.05 Licensing Multimedia Performances and Underlying Rights
[1] Movie, Video and Broadcast Rights
[2] Licensing Underlying Rights
11.06 Other Key Issues in Grand or Dramatic Performance Rights Licensing
[1] Limiting Scope of License
[2] Billing Credits, Logos and Merchandise
[3] Collection of Royalties and Rental Charges for Performance Materials
11.07 Form: Grand rights Tour License-Live Stage Performance of Dramatico-Musical Work
11.08 Form: Agreement for Use of Screenplay Material in Live Stage Performance
11.09 Form: Limited License for Creation of Archival Videotape
11.10 Form: Limited LicenseqVideo Clips for Advertising
11.11 Form: Use of Song in Grand Rights First-Class, Stock and Amateur Performances
11.12 Form: Play Production Agreement
11.13 Form: Motion Picture License, Marketing and Distribution Agreement
11.14 Form: Copyright Office Form PA for a Work of Performing Arts
CHAPTER 12
Literary Licensing
12.01 Introduction to Literary Licensing
12.02 Rights Covered by a Literary License
[1] Right of Publication
[2] Format of Book Publication
[3] Subject Matter of the License
[4] Territory and Language
[5] Duration
[6] Advance and Bonuses
[7] Royalties
[8] Delivery
[9] Satisfactory to the Publisher in Form and Content
[10] Legal Review
[11] Editing
[12] Securing Permissions
[13] Publication Dates
[14] Print Run and Advertising
[15] Out of Print
[16] Warranty and Indemnification
[17] Non-Compete
[18] Options: First Refusal and Last Negotiation
[19] Force Majeure
[20] Promotion
[21] Author Copies
12.03 Additional Rights Covered by a Literary License
[1] Audio Rights
[2] First and Second Serial Rights
12.04 Form: Literary Work License Agreement
12.05 Form: Option License Agreement for a Literary Work License
12.06 Form: Content License Between a Magazine Publisher and a Web Site Publisher
12.07 Form: Copyright Office Form TX for a Non-Dramatic Literary Work
12.08 Form: Short Form TX and Instructions for a Non-Dramatic Work
CHAPTER 13
Antitrust Limits on Licensing
13.01 Overview of Antitrust Limits on Licensing
13.02 Duty to License to Third Parties
13.03 Price Restrictions in Licensing Agreements
13.04 Exclusive Licensing and Exclusive Dealing
13.05 Cross-Licensing and Pooling Arrangements
13.06 Grantbacks
13.07 Tying
[1] Generally
[2] Technological Tying
13.08 Enforcement of Invalid Intellectual Property Rights
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