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Webinar covering key concepts in copyright valuation and damages analysis, including apportionment, forecasting, royalty rates, and discount rates
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Copyright Valua/on and Damages
State Bar of California, Intellectual Property Law Sec7on
March 2013
Brian Buss, CFA Doug Bania, CLP
Introduc/on
Our View of IP Founda1ons
of IP Valua1on
Key Concepts
Copyright Example
A financial and economic perspective on Copyrights
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Nevium Intellectual Property Solutions
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Develops supportable financial and economic analyses for clients ranging from law firms to entrepreneurs to fortune 500 corporations to not-for-profit organizations. Brian applies his experience in finance, banking and valuation to value individual assets and bundles of intellectual properties, calculate damages in IP infringement disputes, and develop return on investment analyses to support strategic decisions. • 20 year career in Valuation, Financial Analysis,
Banking • Charted Financial Analyst (CFA) • MBA (SDSU); BA in Biology and Economics
(Claremont McKenna College) • Valuation and M&A experience on 5 continents
Brian Buss Works closely with clients to develop licensing and monetization strategies for assets including trademarks, patents, brands, publicity rights and copyrights. Using his experience analyzing and structuring intellectual property transactions, Doug serves clients as an expert witness, negotiating transactions and in implementing IP strategies. Doug is an active member of San Diego’s Licensing Executive Society, currently serving as the Chair-elect.
• Certified Licensing Professional (CLP)
• MA in Television, Film and New Media Production; BA in Cinema
• Over 11 years experience in intellectual property advisory and management
Doug Bania
Complementary skills and experience
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Responsibility Chain Complementary Views on IP
A Financial and
Economic View of IP
IP Development and Ownership
IP Business Management
IP Legal Management
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Responsibility Chain Valuation Basics
Art & Science . . .
but not Magic
Value = Present Value of Future Benefits
Fair Market Value = price at which un-related parties would transact
Valuation happens every day, only some valuations involve a formal analysis
IP Valuation requires one more step compared to Business Valuation
How Copyrights Can Be Valuable
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Descrip7on Benefit
Monopoly Barrier to entry, exclude others from using
• Pricing power • Greater profit margins
Permission Ability to be compensated when others use
• Value of license (PV of royal1es+fees – costs)
• Value if sold
Li/ga/on Seek damages if others use
• Li1ga1on award (PV of award less costs)
• Threat of li1ga1on (force “Monopoly” or “Permission”)
Promo/on
Signals innova1on, uniqueness, source of origin to consumers
• Addi1onal sales • Reduced marke1ng • Incremental margin
Value Derived
From Use
Art, Music & Entertainment
An LA street ar1st’s work was used without permission by a well-‐known band as a component of the concert backdrop
Reasonable fee for use of lyrics by a cover-‐band
Texts and wriBen works
Value of a published Christmas play for the author’s estate Fair royalty to the creators of a comic book character when used
as the basis for a mo1on picture character
SoEware A soUware developer “used” the user-‐interface of the market-‐leader’s design soUware, knowing that the “look and feel” of their new product needed to match the “industry standard”
Photographs & Art
Shoe company had permission to use an ar1st’s western photography with marke1ng materials, but used certain photographs on the shoe box without permission
Website, brochures
Son started a new company using Dad’s website, brochure and promo1onal materials
Designs How and when does a fabric paXern yield addi1onal profits from the sale of garments by chain-‐store retailers?
Value to prospec1ve lender for a library of copyright-‐protected designs in the event of bankruptcy
Range of Copyright Issues
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The Challenge:
Reasonably quantify the economic
and financial contribution of copyrights
Founda/ons of IP Valua/on
Why
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Buying or selling
Licensing
Bankruptcy
Build, buy or license
IP portfolio alignment
ROI, ROMI
Our first question: “Why do you need the Asset valued?”
Fair value reporting
Purchase price allocation
Impairment testing
Estate transfers & contributions
Transfer pricing
Non-profit to for-profit
Eminent domain
Damages
Valuation
Strategy / Transactions
Compliance Litigation
Context impacts the Analyst’s approach to the assignment
What
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Early on,
All parties agree on what is being valued
Our 2nd question: “Which assets will be valued?”
Trademarks Copyrights
Publicity Rights
Patents Copyrights
Trade Secrets
Marketing Assets Technology Assets
Domain Names Customer Lists Relationships
Practices / Procedures
Know-how / Research Test Results
Relationships Practices / Procedures
What other assets are related to the copyright(s)?
Valuation Approaches for Brand IP Description Information Required
Cost Approach
Amount a potential buyer would pay to replace or create an asset themself
• Historical Cost to develop the IP • Amount spent to promote, maintain and support the IP • Estimate of cost to replace or replicate (R&D expenses,
corrective advertising, time and effort)
Income Approach
Present value of future economic benefits received from ownership of an asset
• Product-level earnings forecast • Apportion profits from products using the IP • Reasonable royalty rates & licensing compensation • For damages: But-for and As-is forecasts
Market Approach
Value based on observed transactions involving comparable or similar assets
• Comparable transactions research • Peer Group: market share, pricing strategy & results • Similar forms of IP, IP used in similar context
How
Same Approaches as Business Valua7on . . . apply as many methodologies as possible
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Responsibility Chain
The Intellectual Property
& Products Profits
People Resources
Tangible Assets / Natural Resources
Business and IP Valuation
The Key in IP Valuation: Apportion
profits to the IP
IP depends on other assets and resources in order to generate economic benefits
=
Capital Resources
Other IP & IA
Key Concepts for Copyright Valua/on
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Responsibility Chain
Present Value of
Expected Future
Benefits
Value of Business =
Intangible Assets
= =
Trademarks
Patents
Tangible Assets
Intangible Assets
Tangible Assets
Concept 1: Apportionment
Copyrights amongst
many assets used to
generate “Benefit”
Value of Business > Value of copyrights owned by the Business
Copyrights
IP Marketplace
Product Marketplace
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Responsibility Chain
Licensor
Concept 2: Value for Whom Transac7on requires benefit for mul7ple par7es For Licensee
Value = Revenue – Compensation Paid
(often a Royalty)
Licensee
Customer
For Licensor Value = Royalty – Cost to
Develop & Own IP Compensation
Product Revenue
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Responsibility Chain Concept 2 (cont): Value to Whom
Both parties expected to
benefit
0 1 2 3 4 5Forecast Licensee Sales 1,000 1,300 1,495 1,645 1,727 1,761 Growth Rate 30% 15% 10% 5% 2%
Annual Royalty Rate 8.0% 8.0% 8.0% 8.0% 8.0%
For IP User (Licensee)Up-front payment (50) Annual Fee (5) (5) (5) (5) (5) Additional Profit Margin 15% 20% 15% 10% 5%Additional Profits - 195 299 247 173 88 % of Sales Royalty - (104) (120) (132) (138) (141) Total Benefits (50) 86 174 110 30 (58) Present Value @ 25% (50) 69 112 56 12 (19) Value of IP to Licensee 180
For IP Owner (Licensor)Up-front payment 50 Promotions Commitment (130) (150) (82) - - Promotions Commitment % 10% 10% 5% 0% 0%Annual Fee 5 5 5 5 5 % of Sales Royalty 104 120 132 138 141 Total Benefits 50 (21) (25) 54 143 146 Present Value @ 20% 50 (18) (17) 31 69 59 Value of IP to Licensor 174
Income StatementRevenues
Gross Sales 1,000 100%Discounts 5 1%
Net Revenue 995 100%
Cost of Sales 450 45%Gross Profit 545 55%
Operating ExpensesSales & Marketing 100 10%General & Admin 75 8%Research & Development 50 5%Depreciation 35 4%Other 15 2%Total OpEx 275 28%
Operating Income 270 27%
Other Income / (Expense)Interest, net (55) -6%Non-recurring (45) -5%Sale fo Assets 85 9%Total Other Income (15) -2%
Pre-tax Income 285 29%Tax Expense (100) -10%
Net Profit 185 19%
Not all royalties are
the same
Concept 3: Royalty Rates
Best for Licensor
Best for Licensee
Fina
ncial R
isk to Licen
see $ / Unit made
$ / Unit Sold Gross Sales ($ invoiced)
Gross Sales (Collections) Net Sales Gross Profits EBIT Net Profits
Level of Benefit Drives the Royalty
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Concept 3: Royalty Rates
Licensor Activities
Research &
Create
Test & Ado
pt
Publish
Market
Distrib
ute
Service /
Supp
ort
Resign /
Adop
t
Licensee Activities
Reasonable Royalty considers: the level of benefit, and the allocation of roles
Allocation of Roles Drive the Royalty
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Concept 4: Forecasting Future Benefits
Asset Remaining Life (Years)
Cash Flow ($)
Asset Value ($)
IP: Remaining Life, Cash Flow & Value • IP and the products that use IP
have life spans • Benefits from the IP will grow, peak
and then decline as other IP and other products take their place
• Companies can expect perpetual growth, IP cannot
Guiding Concepts
Total Contribution
Patents
IP: Relative contribution
Trademarks & Other Intangibles
Time
Product Life Cycle Products & Businesses
IP Remaining Life
Business Revenues Benefit
Today’s Products
Products In-development
Future Products
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• Market outlook • Economic trends • Peer group analysis • Competitive product analysis • Pricing and discounting history • Pricing strategy • Share of product portfolio • Product life cycle stage • Cost to “clean” or “repair”
Building Benefit Forecasts Remaining Life, Cash Flow & Value
But-for v. As-Is
Tie the forecast to the facts
Concept 4 (cont): Forecasting Future Benefits
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Responsibility Chain Concept 5: Discounting Future Benefits
WACC = WARR
Rates from 15 – 30% are
typical
The Discounting Formula: • FB = forecast benefits • R = discount rate
Two Key Concepts
WACC = WAAR Principal of Substitution
One last element
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Responsibility Chain
Copyright Valuation
&
Key Concepts
Bringing it all together
Why, What & How
Apportionment
Value for Whom
Royalty Rates
Discounting
Forecasting Future Benefits
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Financial Performance: historical, trends, forecasts, ratios
Timelines: chronologies, histories and event charts
Market Share: market positions, market maps
SWOT / Porters: identify forces shaping the business
Scoring Analyses: confusion scores, comparable claims, brand strength scores
Company Language Analysis: what competitive advantage the Company has claimed
Surveys and Intercepts: consumer preference, confusion
Royalty Rates: benchmarks, surveys and comparable transactions
Best Practices: licensing and transaction practices as described in texts and guidebooks
Tools for the Narrative
Supportable analysis
requires a cohesive
narrative . . .
and lots of tools
Combine Concepts & Build the Narrative
The Qualitative is as important as the Quantitative
Copyright Analysis: An Example
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Responsibility Chain
Copyrights x Products / Services Profits People Resources
Tangible Assets / Natural Resources
Copyright Valuation
Two Steps:
Determine Profits
then
Apportion
Profits to the Copyright
Copyrights Require Other Resources
Capital Resources
Value of Copyright
Simply . . .
Forecast Profits x Apportionment =Discount
Rate x
The Apportionment Challenge
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• Company Language Analysis • Website Analytics • Comparable licensing transactions
(“CUT”) • Excess profits (“CPM”) • Feature count and comparison • Promotional Use Analysis • Share of product portfolio • Surveys / Scoring / Interviews (the
qualitative) • Rules of Thumb?
Tools to Apportion Economic Benefits
Always best to use mul7ple tools
The Framework
How big is this box?
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Responsibility Chain Copyright Valuation Example
That’s all
Value of Copyright
Forecast Profits x Apportionment =
$1,000 year 1 x = $150
year 1
PV of Future Benefit
Apportionment Results
Analysis Type Low HighWebsite Analysis 5% 20%Company Language 15% 25%CUT 8% 12%
Use
% of Profits to IP
15%
= $603
Why Value: Sale of copyright to un-related party
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Nevium Intellectual Property Solu7ons www.nevium.com 858 255 4361
Managing intellectual property is key to maximizing value