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Distributing a Debtor's Intellectual Property
November 22, 2004 Full PDF
Stephen Shimshak, Brian Hermann and Ephraim Diamond's article, "Distributing a Debtor's Intellectual Property" is featured in today's New York Law Journal special "Corporate Restructuring and Bankruptcy" section. The article examines the application of §365(n) of the Bankruptcy Code beyond technology licenses, and focuses specifically on agreements to distribute music, books, films or videos and the complications which may arise when a distributor elects to retain its rights under a rejected distribution agreement. Section 365(n) was enacted to ensure a licensee's continued use of licensed technology following a bankrupt licensor's rejection of its license. Many bankruptcy practitioners rely on its protections for a broad array of licensing arrangements. The authors conclude that although the result is not entirely free from doubt, particularly in the absence of on point authority, the statute's plain language and its legislative history, would seem to preserve a distributor's rights to continue to manufacture, distribute and sell the debtor licensor's intellectual property and, critically, to continue to recoup unpaid "advances."