Daniel J. Ritterbeck, Widener University School of Law Class of 2013, and Senior Staff Member of the Delaware Journal of Corporate Law, was recently awarded first prize in the 2012 Pennsylvania Bar Association’s Intellectual Property Writing Competition for his paper titled The Assignability of an Exclusive Copyright License in a Bankruptcy Context: The Correct Application of ‘Applicable Law.’
In 2004, the Pennsylvania Bar Association’s Intellectual Property Law Section established the writing competition to create an opportunity for second and third-year law students to express, in writing, their knowledge and interest in the areas of patents, copyrights, trademarks, trade secrets or trade dress. In his paper, Ritterbeck analyzes the effects that sections of the Bankruptcy and Copyright statutes have on the transfer of exclusive copyright licenses, and suggests how courts should approach analyzing the issue in the future.
“I’m honored to be recognized by the Pennsylvania Bar Association,” says Ritterbeck. “I’m passionate about intellectual property rights and how they relate to other complex civil issues. Consistent treatment by the courts is crucial considering the importance of intellectual property in today’s business and legal landscapes.”
As the first place winner, Ritterbeck was awarded a $2,500 cash prize, and his paper will be published in the Intellectual Property section of a forthcoming issue of the Pennsylvania Bar Association’s newsletter, and will also be available on the bar association’s website.
Various forms of intellectual property, including copyrights, continue to serve as the most valuable assets found in the portfolios of many corporations in the United States. As the U.S. economy struggles to recover from its recent years spent in recession, many corporations are being forced to file for bankruptcy. It follows that the role intellectual property assets play in bankruptcy proceedings, especially in Chapter 11 reorganizations, is of utmost importance and the treatment they receive by the courts will have sweeping implications on debtor licensees, non-debtor licensors, and creditors alike. This is especially true in the bankruptcy context of whether a debtor licensee has the right to freely assign an exclusive copyright license without the consent of the licensor. However, no steadfast rule has been developed by and between non-bankruptcy and bankruptcy courts, despite Congressional guidance on the matter in Titles 11 and 17 of the U.S. Code.
The problem exists because the assignment of exclusive copyright licenses in a bankruptcy context is governed by applicable non-bankruptcy laws (i.e. federal copyright laws), and bankruptcy and non-bankruptcy courts are in disagreement concerning the correct application of those laws. The problem is exacerbated by the fact that the policies underlying the two areas of law are antagonistic to say the least. This Note will argue that the Ninth Circuit’s holding in Gardner v. Nike illustrates the correct application of copyright law as it pertains to the assignability of an exclusive copyright license because the court’s holding was based on an accurate reading of 17 U.S.C. § 201(d)(2); the protections and remedies afforded to a licensee of an exclusive copyright license do not include the right to transfer a copyright absent consent from the owner of the copyright. Such an interpretation better reflects the policies underlying copyright law, and the results that follow its application are equitable to all parties involved. Therefore, the United States Bankruptcy Court for the District of Delaware should adopt the well-reasoned approach articulated in Gardner and accordingly reconsider its holding in In re Golden Books.