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They shall overcome: Classic song’s copyright is invalidated by non-IP attorneys

The iconic protest song, “We Shall Overcome,” is now in the public domain after a small team of primarily non-IP lawyers succeeded in having its copyright invalidated.  

The settlement with publisher Ludlow Music, according to Law360, “which for decades charged fees for use of the civil rights anthem — came after nearly two years of class action litigation aimed at freeing the song from copyright protection.”

The suit, filed by the filmmakers behind “Lee Daniels’ The Butler” and others who wanted to use the song, argued that “Overcome” was merely a repackaging of a century-old African-American spiritual, meaning it couldn’t be locked up with a copyright. Last fall, a New York    judge agreed.

Under the terms of the deal, Ludlow Music will return the licensing fees paid by the plaintiffs and will no longer claim a copyright to the song. The tune, the publisher said, will be “hereafter dedicated to the public domain.”

Free at Last

The copyright invalidation of “Overcome” is the latest victory for lawyers from Wolf Haldenstein Adler Freeman & Herz LLP, whose focus is social justice, consumer protection and labor law, reported the newsletter, and is rapidly becoming the authority for lawsuits aimed at proving that a famous old song should be in the public domain.

Those lawyers, Randall S. Newman and Mark C. Rifkin, famously won a court order in 2015 over the ubiquitous “Happy Birthday to You,” eventually securing a similar public domain agreement and $14 million in repaid licensing fees. That victory led to the “Overcome” case, as well as another pending case challenging the copyright to “This Land Is Your Land.”

In a telephone interview with Law360, Newman and Rifkin said they hadn’t exactly set out to corner the market on freeing famous songs — neither had done much copyright work prior to these cases — but that they welcomed their newfound niche.

“Please don’t call us the caped crusaders of copyright,” Rifkin joked. “But somebody has to hold owners accountable for misuse of a copyright like we saw in these cases.”

For the full Law360 story and links, go here. 

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Study finds that black, hispanic and women inventors lack opportunity and role models

Economic hardship and lack of exposure to innovation are preventing minorities, low-income backgrounds and women from becoming inventors. 

Those are the findings of “Lost Einsteins: Innovation and Opportunity in American,” conducted by the Equality of Opportunity Project (EOP). The study was conducted by researchers from Stanford, Harvard, the London School of Economics and MIT.

EOP analyzed the lives of more than one million inventors in the United States to understand the factors that determine who becomes an inventor in America.

“If women, minorities, and children from low-income families invent at the same as high-income white men,” the study concluded, “the innovation rate in America would quadruple.”

Patent Grants vs. Patent Success

Dramatic differences in patent grants do not account for lack of patent success.

The report did not examine reasons for the failure of  “advantaged” inventors – those from better socio-economic background – to establish businesses, generate licenses and otherwise contribute successfully to innovation and technology. This may more likely be a result of weakened IP laws under the American Invents Act and a general lack of support for inventors, including those associated with corporate research departments and research institutions.

The study concluded that children who excelled in math were far more likely to become inventors but that being a math standout was not enough. Only the top students who also came from high-income families had a decent chance of becoming an inventor.

Low-income students who are among the very best math students – those who score in the top 5% of all third graders – are no more likely to become inventors than below-average math students from affluent families.

While minority inventors certainly should be nurtured, the high failure rate of innovators who had the benefit of and privilege raises serious questions about whether financial support and role-models are the only resources bright people from minority groups need to succeed.

The full Intangible Investor, “Minority Inventors ‘Lost,'” in the March IAM magazine, go here

Study documents for the Equal Opportunity Project – including an executive summary, slides and a paper – can be found here

For the summary slides alone, from which the above images were generated, go here.

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Royalty rates paid musicians decline for some streaming services

When it comes to getting paid, the bigger streaming service is not necessarily better for most musicians and song writers.

While the revenue and market share have grown for the leading streaming services, some significantly, the royalties paid to artists have been declining.

According to a recent article in The Trichordist, a publication dedicated to the protection of artists rights in the digital age, streaming royalties paid to artists declined in 2017.

The blog took snapshots from a major indie portfolio for 2017, 2016 and 2013. It found that “when streaming numbers grow, the per stream rate will drop.”

This data set is isolated to the calendar year 2016 and represents a label with an approximately 150 album catalog generating over 115 million streams, a fairly good sample size. All rates are gross before distribution fees.

Spotify was paying .00521 back in 2014, two years later the aggregate net average per play rate dropped to .00437 in 2016, a reduction of 16%, reports the Trichordist. The current effective per stream rate at Spotify has now dropped to 0.00397, a reduction of 9% since last year. This a cumulative reduction of 24% since 2014, which is an average decrease of 8% a year of the per stream rate.

Business Model Questions

“If the music business could set a per stream rate that allowed revenue growth, proportionate to consumption growth that would be a much better model,” said David Lowery, editor of The Trichordist and leader of the band Cracker and Camper Van Beethoven. Lowery teaches in the Music Business Certificate Program at Terry College of Business, University of Georgia.

A notable change from last year is that Pandora replaces YouTube with the greatest value gap of streams at 21.56% volume with only 7.86% of revenue. YouTube drops to 8.38% of volume with only 1.70% of revenue.

Indie Label Sample: 115 Million Streams

Top Players

Apple appears to be the lone streaming service that is growing both in market share and revenue, and is paying relatively high royalties. It accounts for 22.29% of the revenue on 10.48% of the streams, and pays approximately six-times the per-stream royalty rate of Pandora. (Apple’s iTunes is a direct purchase model, while Pandora offers a more radio-like format, which precludes on demand listener selection.)

More than 95% of the streams and 98% of the revenue were concentrated in the top ten companies. The top three, Spotify, Apple iTunes and Pandora, comprise about 80% of the streams for this representative catalogue and 82% of the total streaming revenue.

For The Trichordist‘s 2017 streaming sample, go here; 2016, here; and 2013 here.

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IP “literacy” matters – Ideas Matter promotes IP understanding for all

A basic literacy about IP rights is everyone’s responsibility. 

While at times complex, patents, copyrights, and trademarks can be widely understood if people are clear about their purpose and who they benefit.

Putting IP rights in perspective is serious business – especially given that knowledge-focused economies place an increasingly high premium on innovation, authorship, and brand.

Ideas Matter, a London-based consortium of IP holders and innovative businesses believes it is necessary to provide audiences more information about why IP rights are important and how it affects people. Recently, it teamed with the Center for IP Understanding at the IP Awareness Summitt in Chicago, to produce a video about the need for everyone to know more about IP rights.

“I think the economies of the world have realized that the market is controlled by innovation and invention,” said Judge Randall Rader (ret.), Chief Judge of the Court of Appeals for the Federal Circuit. “That requires research, that requires development of new ideas and resources, and, of course, those investments need protection.  That’s where the intellectual property system pays benefits.”

Ideas Matter released a video of interviews with IP experts and holders conducted at the IP Awareness Summit in Chicago. IPAS 2017 was held by the Center for IP Awareness (CIPU) in conjunction with Chicago-Kent College of Law, Illinois Institute of Technology.

For background about the video and Ideas Matter, go here. Twitter: @IP_IdeasMatter.

To view the five-minute video, go here or click on the image above.

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IPCU readers get $200 off 10th IP Corporate Counsel Forum in NY

The 10th annual Corporate IP Counsel Forum will take place this year March 14-15 at the Sheraton Times Square in New York.

The keynote address will be delivered by Hon. Paul R. Michel, Chief Judge for the United States the Court of Appeals for the Federal Circuit, 2005-2010, ret; Circuit Judge, 1988-2010. Judge Michel is known as a strong advocate of improving the patent system and patent quality.

Judge Michel will address the controversies and issues surrounding the patent system, especially how to address patent enforcement quality in an era of greater IP uncertainty. The title of his talk is “Explore the Future of the AIA.”

Among other issues, Judge Michel will consider:

  • What must be learned from the past to make necessary adjustments in order to spur adequate private investment in R&D and commercialization, and to create new jobs and prosperity.

Leading IP Holders

Other Corporate IP Counsel Forum presenters and attendees include senior IP executives from JP Morgan Chase, General Electric Corporation, NCR Corporation, Royal Philips, Coty, Inc., Intel and Mastercard Woldwide, the Clearing House Payments Company (a global association of leading banks) and Wisconsin Alumni Research Foundation – WARF.

IP CloseUp readers who register by February receive a $200 discount on the conference fee. Use conference code IPC2XX.

For the program and full speaker list, go here

To register, go here

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IP CloseUp visits up 26% in 2017; page views up 31%; readers drawn from 134 nations and territories

IP CloseUp, the blog of IP perspective, research, and people, grew in 2017 to more than 56,000 views and 44,000 visits, up 26% and 31% respectively from 2016.

Now in its seventh year, IPCU was read in 134 nations and territories in 2017. The top ten readers were the U.S., Canada, India, UK, New Zealand, Australia, Germany, South Korea, Taiwan, and France.  They were followed by the Netherlands, Japan, and China.

The most active month in 2017 was January, with 20,357 views. IPCU averaged a post a week and generated 52 posts for the year. Posts typically include links that make further research and exploration easier.

Since its inception in 2011, there have been more than 120,000 visits to IP CloseUp and 176,000 page views.

The most read post this year was about Robert Kearns, inventor of the intermittent windshield wiper, who was forced to sue U.S. and other automobile companies in the 1980s for patent infringement. The Kearns post generated 17,548 visits in January. A subsequent Kearns post published in 2016 can be found here.

IP CloseUp coverage includes patents, as well as copyrights, trademarks and trade secrets. Subscriptions are free. IPCU can also be followed on Twitter @ipcloseup.

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2018 in focus: Videos from IP Awareness Summit explore better IP understanding

The IP Awareness Summit 2017 was the first IP event to focus on perception and awareness of intellectual rights and their impact.

Videos of panel discussions, held at Chicago-Kent College of Law, Illinois Institute of Technology on November 6, have been posted to YouTube and the IPAS event website.

More than a record of the Summit, these videos move the IP awareness discussion to a new level, and are worth perusing whether or not you attended IPAS. (Some observers choose to view/listen while multi-tasking.)

IP Erosion

The presentations include economist and entrepreneur David Teece’s keynote, “IP Erosion: A Growing Threat to U.S. Economic Leadership.”

To access the IP Awareness YouTube channel, please enter “IP Awareness” on YouTube, or go here.

Panelists and their current or prior affiliations are identified on YouTube, beneath the videos.

All eight videos are centralized and can be accessed from the IPAS 2017 website, here. 

For specific IPAS panels, click or tap below.

IP Education Today

Identifying Good and Bad IP Behavior (intro)

Identifying Good and Bad IP Behavior (panel)

IP and Theft: The High Cost of Confusion

Keynote – David Teece, The Tusher Center, UC Berkeley-Haas School of Business
“IP Rights Erosion: A Growing Threat to U.S. Economic Leadership”

Media Coverage and IP

Making IP Awareness a Higher Priority

Breakouts: Impediments to IP Understanding


Feel free to tweet, post or otherwise share the IPAS YouTube videos with others. You can also send your thoughts and comments to


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RPX buyout rumors set share price at a 27% premium, or $800M

Shares of RPX (RPXC) opened today at $13.88, up 2.81%, after rising 5.6% last Wednesday on rumors from two sources that the defensive patent aggregator is a takeover target.

Richard Lloyd of the IAM blog broke the story on December 12, saying the a private group had offered $16.25 per share for the company, or $800 million, a 27% premium.

But some observers doubt whether RPX can fetch that high of a premium. Don Lonkevetch writing in this morning’s Patent Investor said:

“That’s because San Francisco-based RPX’s business has been hurt by its own past success in combatting non-practicing entities and the overall decline in patent litigation since the American Invents Act of 2011 made it cheaper and easier for companies to invalidate patents…

“As a result, big tech companies who have been among RPX’s biggest clients have grown increasingly reluctant to rely on RPX to put together syndicates to keep patents out of the hands of NPEs.”

The Patent Investor cites an anonymous source familiar with RPX (short for Rational Patent Exchange) who suggests  the company is worth about $12 per share.

Below IPO Price

RPX is already up about 24% this year, but is still trading well below its 2011 IPO price of $19 per share. Founding CEO John Amster left the company earlier this year after his suggestion to take the company private at $11 per share were nixed.

Baird analyst Jeffrey Meuler reiterated his Outperform rating last week and $15 price target on RPX Corp.

Earlier in the year, on March 8, CNA Finance reported that “Early this morning, stories started breaking that RPX Corp may soon be acquired. In fact, according to some of the reports, the company has received several offers from private equity companies to take it out of the public sector.”

On that day RPX shares rose 15%. Thus far, the RPX board has not commented.

If RPX were to be acquired at a significant premium to its current $668 million market capitalization, it would be a boost of confidence not only for the company’s shares and public IP companies (PIPCOs), but for patent holders in general. It could be a signal that patent values are headed higher.

On Thursday, USPTO Director Nominee Andrei Iancu was unanimously approved by Senate Judiciary Committee, signaling a further distance from the Michelle Lee-led USPTO that saw a dramatic rise in invalidations before the Patent Trial and Appeal Board.

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Copyright company filing is a “mini” IPO aimed at monetizing future music royalties

A business designed to acquire and monetize royalty streams “of the world’s biggest artists,” Royalty Flow, went public last week with a “mini” IPO, or registration under Regulation A+ crowdfunding initiative. 

A new type of PIPCO (public IP company), Royalty Flow hopes that under the 2012 JumpStart Our Business Start-up (JOBS) Act, passed by the Obama administration and known as “Regulation A+,” will enable it to raise between $11 million and $50 million. If successful, the capital will allow the company to purchase a portion of the income stream derived from Eminem’s 1999-2013 catalog and pay investors dividends in return.

Depending on how much money is raised, Royalty Flow will buy either 15 percent or 25 percent of an Eminem income stream based on royalties paid to FBT Productions, which often works with the performer.

With the recent upsurge in streaming revenues from services like Pandora, Spotify and Apple Music, some music industry observers believe that royalties generated under copyrights have a bright future. But streaming services have only just begun to pay recording artists and producers, and lucrative licensing deals reminiscent of returns on retail CDs are a long way off for most.  See “Music royalties – a siren song for niche investors seeking higher yield” in the August 23 IP CloseUp.

The Royalty Exchange website cites a Goldman Sachs analyst that paid streaming revenues will grow by 833% by 2030 (see graph above).

Reminiscent of “Bowie” Bonds

The Royalty Flow business model is reminiscent of the “Bowie” Bonds securitization that took place in 1997. In that arrangement Bowie’s company, the copyright holder, did not sell the assets, but a portion of the cash flow they generated over a ten-year term. Bowie did well on the $55 million deal. Investors, depending on when they bought and sold, did not.

“What Bowie sold was the present value of his personal intellectual property (song copyrights) – that is, the future expectation of future royalty income, less a discount,” said an analyst.

Those buying shares in Royalty Flow would have the right to collect dividends based on the performance of the Eminem catalog and any other catalogs acquired over time. The company says it intends to later list directly to the NASDAQ.

“The plan is to give fans and investors a way to share in the income from the royalties through dividends paid by the company,” reports Billboard.

The minimum investment during the IPO is $2,250 for 300 shares (at $7.50 a share). After the equity campaign is over, Royalty Flow “intends to list directly to NASDAQ and give latecomers a chance to invest in Royalty Flow stock through the public exchange.”

Royalty Flow was officially launched on November 27, 2017. The company, a subsidiary of Royalty Exchange, a copyright auction company. For more information about Royalty Flow, go here

For the Regulation A+ S.E.C. filing, go here.

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Short-term thinking about intellectual capital weakens the U.S.’ ability to compete

A well-known economist and entrepreneur, whose work has been cited more than 120,000 times as tracked by Google Scholar, says that businesses and managers who fail to properly acknowledge the contribution of intellectual capital, including IP rights like patents and trade secrets, are dangerously short-sighted. 

David Teece, Director of the Tusher Center for the Management of Intellectual Capital, at UC Berkeley’s Haas School of Business, says “We are at a critical junction in the evolution of our society and the economy. If we continue to protect and reward just the production of tangible goods (objects), while short-changing intangibles (ideas, inventions, creative-works, know-how, relationships, etc.), we will be out of step with technological progress and the march of civilization.

“Economies will eventually stutter if the creation of intangibles is compromised through poorly designed and weakly enforced intellectual property rules.”

Brief and Keynote

These remarks were part of a brief he wrote for the Tusher Center, which can be found here. He delivered more detailed remarks as the keynote at the first IP Awareness Summit in Chicago in November. The title of his talk was “IP Rights Erosion: A Growing Threat to U.S. Economic Leadership.” For the complete Intangible Investor column, “Short-changing intangibles – is risky business,” in the January IAM magazine, out this week, go here.

Dr. Teece believes that improving awareness of and attitudes towards intangible assets ought be part of industrial and innovation policy debates. “Nations that rely on creativity,” he says, “must be vigilante in maintaining systems that permit innovation, authorship and creativity to thrive.”

For the outline of Dr. Teece’s talk, go “IP Rights Erosion: A Growing Threat to U.S. Economic Leadership.”

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Antitrust Attorney General suing AT&T supports patent monetization

Yesterday, United States Assistant Attorney General for Antitrust Division, Makan Delrahim, filed suit to stop the $85 billion AT&T-Time Warner merger, which previously had been progressing through regulatory approval. 

Almost at the same time, in a recent carefully crafted speech before a business and law audience, he outlined his preference for reliable patents and consistent, free-market enforcement. Putting a patent attorney in charge of antitrust may be the Trump administration’s best idea yet.

Delrahim’s remarks were delivered recently as part of the USC Gould School of Law’s Center for Transnational Law and Business Conference.

“Fresh thinking about the implications of SSOs [standards setting organizations] and the proper role of antitrust law is long overdue,” said Delrahim, who is the first patent attorney to head the Antitrust Division. “Bargaining over new and innovative technologies is a high stakes game, and each side has an incentive to use every means necessary to improve its end of the bargain.  In this game, the competitive market process should win.”


The thoughtful speech was welcome relief to IP holders, especially non-practicing entities whose primary business is patent licensing. However, some people thought the timing and intent of the remarks were more difficult to discern.

“Clearly he [Delrahim] is sending a message that the AG’s office, and perhaps the Trump administration, knows the difference between IP exclusivity, which is conducive to innovation and businesses, and anti-competitive behavior,” a significant patent holder told IP CloseUp.

It’s ironic that his comments were made just days before the DOJ’s decision to sue to stop the AT&T-Time Warner merger, or maybe not.

Yesterday the Department of Justice sued to block the AT&T-Time Warner merger, citing its anticompetitive nature and ability of the combined company “to drive up the cost of channels like HBO, CNN and TBS to rivals and ultimately to consumers.”

Senate Committee on the Judiciary documents submitted in support of Delrahim’s confirmation, show that he has worked in the White House as an advisor and has had a distinguished private legal career, often supporting acquirers in large transactions.

Delrahim emigrated from Iran with his family in the 1970s when he was ten years old to escape the political strife. After law school, he joined Patton Boggs. In 1998, Delrahim became a counsel to the United States Senate Committee on the Judiciary, working under Senator Orrin Hatch (R-UT). Jon Leibowitz, who was then a Democratic Senate aide and worked with Delrahim, remembered him as being a pragmatist.

His video recorded confirmation hearing, worth looking at. Delrahim’s testimony occurs approximately 52 minutes into the recording.

Not a Vigilante

CNN, which may have to be sold to permit the AT&T-TWC merger to go through, reported that “A long time colleague of Delrahim’s who says he is a liberal told CNNMoney that he can’t imagine that Delrahim ‘would engage in any type of vigilante justice to help the president in the deal…That’s just unfathomable to me.'”

Delrahim IP background and more enlightened approach to patents in the marketplace could go a long way to repairing the legislative and judicial hits that the patent system that has taken over the past six years.

“We don’t have the tools to know what the competitive royalty rate is,” concluded Delrahim in his USC speech, “—we’re not price regulators, after all—and if we inject antitrust law where it does not belong. It can actually subvert the competitive process and do serious harm to American consumers and to innovation itself… It’s time to correct this asymmetry to ensure that there are maximum incentives to innovate, and equally proper incentives to implement.”

For the text of Delrahim’s remarks, go here.

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Patents’ early role in creating leading tech businesses eyed

Some information technology companies dubious about strong patents that can be used to restrict their activities or force them to pay licensing fees, appear to have benefitted from securing patents early in their life-cycle.

It’s doubtful whether their early patent success can be similarly reproduced today.

According to a post on the IPfolio blog, a diverse group of IT companies that drew early on patents includes Dropbox, FireEye, Zynga, Square, Facebook, Theranos, SolarCity, GoPro and Apple. 

“[Some] startups remain true to the original vision of the founders,” writes IPfolio. “By analyzing their first patent filings, it’s easy to see which ones have remained committed to plans likely first sketched on a whiteboard in a spare bedroom. In many cases, these ‘seminal patents’ closely describe what the company stands for today.”

“Here are the first patents granted to ten of Silicon Valley’s hottest companies. Fledgling startups when they first filed to protect their intellectual property, they’ve since created billion-dollar businesses around the seminal inventions.” For the full story, go here.

Apple: Microcomputer for use with video display (1977)

Decades before Apple expanded into mobile communication, music distribution and timepieces, it was synonymous with digital design. Steve Jobs’ less well-known co-founder Steve Wozniak invented a method for displaying color and high-resolution graphics using a standard cathode ray tube, which this April 1977 filing described. It was Apples’ first patent.

Google: Method for node ranking in a linked database (1998)

Above is Google’s famous PageRank patent, it’s first. Larry Page’s invention valued a webpage based on how many other pages linked to it. Filed in January 1998, the approach provided a significant improvement in the quality of search results, a key factor in Google’s rise as the dominant search engine. The original assignee was Stanford University, which received 1.8 million shares of Google stock in exchange for a long-term license.

Taken Seriously

For most of the ten tech high-fliers noted by IPfolio, strong patent protection helped them to be taken seriously. For others, like Theranos, the patents could not save a flawed business model and questionable leadership.

It is doubtful whether unicorns and other start-ups today can rely on patent protection to build their businesses in the way successful tech companies were able to in the recent past. There is too much uncertainty about what is patentable and what is a valid patent.


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