Sales- and usage-based royalties are variable consideration received by an entity as part of a licensing agreement, usually for intellectual property (IP), technology, or other similar intangible-type assets that the entity has developed. As described in Accounting Standards Codification (ASC) 606-10-32-6, sales- and usage-based royalty consideration is variable because the payment of royalties is contingent upon the sales or usage of the licensed IP. For most contracts, variable consideration is calculated based on the expected-value method or the most-likely-amount method. For more information on these methods, see Allocating Variable Consideration.
Many royalty arrangements are treated the same as standard variable consideration. However, sales- and usage-based royalty agreements based on a license of IP are exceptions to the typical guidance for estimating variable consideration (ASC 606-10-32-11 through 32-14). The Financial Accounting Standards Board (FASB) removed these royalty agreements from the variable consideration guidance because consideration received under these agreements depends solely on the performance of the licensee and is generally independent of the licensor’s performance. The FASB guidance incorporates the uncertain and unpredictable nature of these royalties into the revenue recognition process. This article discusses both how to determine if a royalty agreement fits within this exception and how to account for the royalties if they do. A flowchart is also provided at the end of the article to visually summarize the entire process for recognizing sales- and usage-based royalties.
Criteria For The Sales- And Usage-Based Royalty Exception in ASC 606
In order for a royalty to qualify for the exception, it must meet both criteria:
A royalty must be based strictly on sales or usage by the licensee. A royalty based on any other fact pattern, such as volume, fixed fees, or milestones achieved by the licensee, may not qualify for the exception.
A license of intellectual property (IP) must be the sole or predominant item to which a royalty relates. A royalty that serves as consideration for any other type of licensing arrangement does not qualify for the exception.
Criterion 1: Sales- and Usage-Based Royalties.
Generally, consideration in a sales-based royalty agreement is contingent upon and paid out as the licensee sells goods or services that utilize the licensed IP. The focus in sales-based royalties is on sale of a final product. In many cases, a sales-based royalty is paid out as a portion or percentage of sales revenue generated using the licensed IP.
Example 1 – Sales-based Royalty
Harper, a singer has licensed his music to an online music retailer, Pentatonic. Pentatonic pays Harper $0.25 for every song of his sold through their website. In the first month, Pentatonic only sold five songs by Harper and wrote a check to Harper for $1.25. However, the next month, with the advent of Harper’s first hit song, “Wintergreen Love,” Pentatonic sells 10 million songs. Pentatonic cuts a check for the sum of $2.5 million. Because Harper is paid royalties based on Pentatonic’s sales of his songs (IP), the royalty is sales-based.
Rambus, Inc. (2018 SEC Correspondence): Maximum Sales-Based Royalty Arrangements
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Rambus, Inc. derives a substantial amount of its revenue by licensing its intellectual property related to silicon chips. Rambus has two royalty-based contracts, designated “Contract A” and “Contract B” in correspondence with the SEC. Both these contracts include maximum amounts. In correspondence with the SEC, Rambus explains why it considers that each royalty arrangement should be viewed as resulting in a fixed amount, not related to the level of customer revenue.
With regards to Contract A, the Company signed the intellectual property license agreement in 2013. In this arrangement, the total consideration under the agreement was calculated as a percentage of the customer’s quarterly revenue, constrained by a maximum quarterly payment amount, further constrained by a lifetime contractual maximum amount. The Company reached this lifetime contractual maximum amount in 2016 prior to the adoption of ASC 606. Though the lifetime contractual maximum amount had been reached, payments for the related amounts continue to be payable through 2020, per the terms of the agreement. For the sake of clarity, when the lifetime contractual maximum amount was achieved, the amounts became fixed.
With regards to Contract B, the Company signed the intellectual property license agreement in 2016. In this arrangement, the total consideration under the agreement was calculated as a percentage of the customer’s total quarterly revenue, subject to a maximum amount per calendar quarter during the term of the arrangement. As part of the ASC 606 adoption process, the Company assessed the customer’s quarterly revenue and determined that the percentage of the customer’s revenue calculation consistently exceeded the quarterly maximum amount by approximately 900%, which was known to the Company at the time of negotiating the terms of the agreement. Because of the significant overage, it had always been the Company’s expectation that the stated quarterly maximum amount would be the effective payment amount during the term of the agreement. Accordingly, the Company determined that as the percentage of revenue calculation exceeded the maximum amount by such a large margin, in essence the quarterly maximum amount was fixed in substance. (October 2018)
Because these arrangements are considered fixed in substance, Rambus did not apply the sales-based royalty exception. Instead, the company recognized revenue when the control of the IP was transferred to the licensee.
A usage-based royalty is consideration paid for each use of IP. Generally, usage-based royalties are focused on the licensee’s use of IP in production or operations rather than the licensee’s end-sales or other benefits derived from the license of IP. Intuitively, usage-based royalties are paid as the licensee uses the IP for its purposes, regardless of the benefits to the licensee that result.
Example 2 – Usage-based Royalty
Jamison & Co. engineers and manufactures synthetic polycrystalline diamond bits for mining and petroleum application. Jamison operates hundreds of proprietary hydraulic presses that are designed to significantly reduce production time. In the press, carbon crystallizes into microscopic diamonds under immense pressure and heat, which are then cemented together in tungsten-carbide. The resulting product is ground to specifications and brazed onto drill bits. Jamison has decided to license its proprietary diamond press technology to a German company, Osterreich Diamant. Osterreich has agreed to pay $500,000 per year in royalties for each press utilizing Jamison’s proprietary technology. Because the royalty payments are based on how many presses use Jamison’s IP every year to produce industrial diamonds, the royalty is usage-based.
Criterion 2: Royalties for Licenses of IP.
ASC 606-10-55-65A limits the exception to apply to sales- and usage-based royalties that are solely or predominantly related to a license of intellectual property. The license is the predominant item of a royalty when the entity can reasonably expect that the customer places more value on the license than the other items included in the royalty. Although not specifically defined in the new standard, intellectual property is generally known to be the product of the creativity or intellect of an individual or company. Intellectual property includes intangible assets such as patents, copyrights, trademarks, and trade secrets.
Situations may arise in which royalty consideration relates partially to a license of IP and partially to other promised goods or services. For example, software licenses are frequently sold packaged with maintenance, consulting, or training services. ASC 606-10-55-65A indicates that as long as the license of IP is the predominant item within the arrangement, the exception covers the entire royalty stream. If the license of IP is not the predominant item, then the exception does not apply. Therefore, ASC 606 takes an all-or-nothing approach.
Comcast Corporation (2018 SEC Correspondence): IP As The Predominant Item
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Comcast Corporation is one of the largest broadcasting and cable television companies in the world and the largest home Internet provider in the United States. In correspondence with the SEC, the company explained how it determines that these sales fall under the sales- and usage-based royalty exception.
As we determined that distribution arrangements are licenses of intellectual property and they generally have payment terms that vary based on the number of the customer’s subscribers during each reporting period, distribution revenue is subject to the royalty constraint in ASC 606-10-55-65 and the revenue is recognized as the customer’s sales occur and the performance obligation is satisfied. Further, as we have concluded there is one single performance obligation in our distribution arrangements, we believe the functional intellectual property would be the predominant item to which the royalty relates. (October 2018)
Because these arrangements are licenses of intellectual property and there is one single performance obligation, Comcast Corporation determined that these arrangements fall under the sales- and usage-based exception.
Example 3A – Royalty Partially Related to License of IP
Willy Corporation (Willy) manufactures aftermarket automotive performance parts and specializes in drive-train and valve-train components. At its plant in Dearborn Michigan, Willy manufactures stroker kits, which are specially designed crankshaft assemblies that increase performance. Recently, management has determined that it is more profitable to license the technology than to manufacture it. Consequently, Willy has agreed to license the IP associated with the manufacture of stroker kits along with the machining equipment and tooling from its Detroit plant to Tomakasagi. In exchange, Tomakasagi has agreed to pay 10 percent of gross revenues resulting from stroker kit sales. The agreement was structured so that, instead of a flat fee for the equipment, the royalty is consideration for both the equipment and IP. However, Tomakasagi is most interested in the IP. Procuring the equipment from Willy, which is fairly standard industrial machining equipment, is merely for convenience and is not absolutely necessary to implement the IP. Tomakasagi can easily obtain this equipment elsewhere. After analyzing the contract, Willy has determined that although the equipment is related to the IP, it is not related highly enough to warrant combination of the IP and equipment into a single performance obligation. Also, due to Tomakasagi’s relative interest in the IP, and the general nature of the industrial equipment, Willy has determined that the license of IP is the predominant item in the arrangement, and that the entire royalty stream is covered by the exception as found in ASC 606-10-55-65.
Other Considerations
In certain circumstances, licenses of IP containing a royalty based on sales or usage are determined to not be distinct and are bundled together with other promised goods or services as one performance obligation. This bundling can occur when the license of IP is closely tied to a promised good or service. For example, a software licensing agreement may include installation services and training for the licensed software, which may be bundled together. However, regardless of the distinctness of a license for IP, the exception for sales- and usage-based royalties is still applicable.
Whether a license gives the licensee the right to use or the right to access licensed IP is important for estimating variable consideration. However, this distinction does not have any bearing on the applicability of the exception or the timing of revenue recognition for sales- or usage-based royalties that fall under the purview of the exception.
Recognizing Revenue Under The Sales- And Usage-Based Royalty Exception
After determining that a royalty qualifies for the exception, an entity must assign and subsequently recognize revenue accordingly. Because of the difficulties and issues associated with estimating sales- and usage-based royalties, these royalties are merely assigned (not allocated) to the appropriate promised goods or services. In many circumstances, royalties are assigned solely to the license of IP. Once the royalty is realized through the subsequent usage or sale of IP, it is added to the transaction price and allocated to its assigned promised goods or services. In situations where a royalty relates to more than one promised good or service, a common way to assign the royalty is to assign a percentage of the royalty to each applicable individual promised good or service. The overarching principle for assigning or allocating variable consideration is stated in ASC 606-10-32-28 as follows:
The objective when allocating the transaction price is for an entity to [assign and subsequently] allocate the transaction price to each performance obligation (or distinct good or service) in an amount that depicts the amount of consideration to which the entity expects to be entitled in exchange for transferring the promised goods or services to the customer
Example 3B – Assigning and Allocating Royalties
Assume the same facts as the prior example. According to the allocation principle for variable consideration, Willy should allocate part of the royalty to each performance obligation, because the royalty is intended to pay for both the machinery and the IP. The estimated market value of the machinery at the time Tomakasagi acquired it was $10 million, while the estimated value of the IP is $15 million. Consequently, Willy has determined that 40 percent of the royalty should be allocated to the machinery and the remaining 60 percent should be allocated to the IP because these percentages best reflect the consideration that Willy expects to receive for each performance obligation. Note that no amount in connection with the royalty can be included in the transaction price until sales or usage occurs. At the end of the first month, after the license was in effect and the machinery was delivered, Tomakasagi generated $5 million in revenue relating to the stroker kits. Per the agreement, Willy received $500,000 because the contingent sales occurred. Consequently, $200,000 was added to the transaction price allocated to the machinery and $300,000 was added to the transaction price allocated to the IP.
Once a sales- or usage-based royalty is properly assigned and allocated, ASC 606-10-55-65 outlines two criteria that must be met before revenue recognition can occur. Revenue may be recognized on sales- and usage-based royalties only when both of the following events have occurred:
The subsequent sale or usage relating to the licensed IP occurs
Whole (or partial) satisfaction of the performance obligation to which all (or some) of the sales- or usage-based royalty has been allocated
By preventing revenue recognition on sales- or usage-based royalties until the later of these two criteria have been met, the FASB has removed the uncertainty in estimating these royalties. Ultimately, these criteria were designed to protect the relevance and quality of financial statements information.
Example 3C – Recognizing Revenue
Assume the same facts as the prior two examples. Because Willy has delivered the machinery, that performance obligation has been wholly satisfied. Thus, subsequent usage or sales is the later of the two requirements for revenue recognition. Therefore, Willy may recognize $200,000 (i.e., $500,000 multiplied by 40 percent) in royalties relating to the promise to deliver the machinery. In addition, the license of IP has already been transferred to, and is in use by, Tomakasagi. As such, the promise to transfer the license of IP is satisfied and revenue recognition is limited only by the subsequent sales and usage of the IP. Willy may recognize $300,000 in revenue when the subsequent sales occur. In total, Willy will recognize $500,000 on the sales Tomakasagi made this month related to Willy’s IP and machinery.
Other Considerations
Sometimes, an arrangement involves milestone payments or a minimum guarantee. Milestone payments are forms of variable consideration that are paid if a target is reached. If milestone payments are based on sales or usage, the exception applies. However, a minimum guarantee, which is an amount a company must pay even if it doesn’t reach a certain level of sales or usage, would have to be accounted for separately because that portion is not a sales- or usage-based royalty.
Incyte Corporation (2020 SEC Correspondence): Recognition Of Milestone Payments
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Incyte Corporation, a pharmaceutical company, has agreements with customers that include milestone payments. and Incyte explained to the SEC how the company accounts for revenue associated with those milestone payments.
For milestone revenues related to sales-based achievements, the Company [Incyte Corporation] recognizes the milestone revenues in the corresponding period of the product sale, in accordance with the guidance of ASC 606-10-55-65 for contracts that include a license to intellectual property and the license in the predominant item to which the product sale relates. (April 2020)
Mattel, Inc. (Q3 2018 10-Q): Recognition Of A Minimum Guarantee
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Mattel, Inc. is a toy manufacturing company that also enters into some IP arrangements for the license of Mattel’s brands. In its September 2018 10-Q, Mattel disclosed the timing of the revenue recognition for these licenses. Mattel also explained the impact of the minimum guarantees included in these arrangements.
Revenues from symbolic licenses of IP are recognized based on actual sales when Mattel expects royalties to exceed the minimum guarantee. For symbolic licensing arrangements in which Mattel does not expect royalties to exceed the minimum guarantee, an estimate of the royalties expected to be recouped is recognized on a straight-line basis over the license term. (Q3 2018 10-Q)
Conclusion
Under the revenue recognition standard, sales- and usage-based royalties for licenses of IP are an exception to the standard guidance on estimating the transaction price for variable consideration. The guidance for this exception is found in ASC 606-10-55-65 through 55-65B, and is only applicable to licenses of IP where accompanying royalties are based on sales or use. Sometimes sales- or usage-based royalties can be bundled into performance obligations with other promised goods or services.
In other circumstances, these royalties may relate to other promised goods or services in addition to the license of IP. In these situations, ASC 606-10-55-65A clarifies that if the license of IP is the predominant item in the royalty arrangement, then the exception applies to the entire revenue stream. The royalty agreement is subsequently allocated to the performance obligations, although no amount can be added to the transaction price until the sales or usage occurs. At the later of the subsequent sales, usage, or satisfaction (whole or partial) of the performance obligation to which the royalty belongs (regardless of distinctness), revenue can be recognized. There are many circumstances in which recognition of sales- or usage-based royalties may be complicated and require judgment; however, readers can utilize the flowchart below to assist them in making these judgments.
