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Awaiting Supreme Court's Ruling on Hybrid Licenses

By Anthony S. Volpe and Max S. Morgan
June 02, 2015

The owner of entertainment intellectual property often faces concerns about maximizing licensing revenues while addressing the restrictions of federal and state laws that create those rights. Because a given IP right may involve federal law ' through patents, trademarks or copyrights ' and state law ' through associated trade secrets or confidential information ' licensing of that IP mix often presents a challenge to maximizing an entertainment IP owner's potential revenue generation.

One approach to solving the problem has been the use of a hybrid license. However, hybrid licenses have had limited success. In Brulotte v. Thys, 379 U.S. 29 (1964), the U.S. Supreme Court held that royalties associated with a patent must stop with a patent's enforceable life. The Court recently heard oral argument in Kimble v. Marvel Enterprises, 13-720, a case involving a Spider-Man role-playing toy in which the court has been asked to overturn Brulotte.

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