J.T. Colby & Company, Inc. et al v. Apple, Inc.

Filing 74

DECLARATION of Claudia T. Bogdanos in Support re: 73 MOTION to Preclude the Testimony of Defendant's Expert Witness E. Deborah Jay.. Document filed by Ipicturebooks LLC, J.Boyston & Company, J.T. Colby & Company, Inc., Publishers LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Chattoraj, Partha)

EXHIBIT E

Page 1

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------X
JT COLBY AND COMPANY, INC., D/B/A
BRICK TOWER PRESS, J. BOYLESTON AND
COMPANY PUBLISHERS, LLC, AND
IPICTUREBOOKS, LLC,
Plaintiffs,
Index No.
11-CV-4060(DLC)

-against-

APPLE, INC.,
Defendant.
-------------------------------------

X

VIDEOTAPED DEPOSITION OF
MIKE SHATZKIN
New York, New York
December 4, 2012, 9:35 a.m.

Reported By:
Nicole Sesta
Ref: 8575

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M. Shatzkin
branding over a long period of time.
Q

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And two lines below that it says,

a consumer it would undercut a brand's value

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"To

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to see a cookbook, a memoir, and a novel stamped

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the same way." What did you mean by that?

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A

What I mean by that is that a

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consumer would -- if a consumer looked for

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meaning in a publishing brand, it would be

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looked -- the consumer would most likely be

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looking for consistency of topic or subject or

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presentation of some kind.

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So

Dummies is a brand where the

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topics are not the same, but the way of

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presenting the topics, if you bought a book, a

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Dummies book, on needlework and you need to know

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how to fry an egg and there's a Dummies book on

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how to fry an egg, you would have expectations

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and knowledge about what that book would deliver

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to you. But generally speaking, brand

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consistency is more about topic or genre. So if

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you're buying a Harlequin book, you know you're

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not getting a spy novel. You're getting a

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romance book. And so that is the way that most

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consumers -- it's the only way that most

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M. Shatzkin

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a biography, followed by, you know, there's no

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particular consistency to what they read. Those

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people are very unlikely to have much of an

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informed opinion about publishers or imprints.

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But then there are other readers

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who are genre readers. And their

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characteristics are different and they tend to

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read many, many, many books in the same genre.

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And in that case, there's a much higher

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likelihood that they will be conscious of

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publisher brands within the genre.

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Q

Have you ever done any research to

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examine consumer awareness of brands either on

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the part of general readers or genre readers?

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MR. RASKOPF: Objection.
Asked and answered.

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A

No.

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Q

Are you aware of any research that

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looks at awareness of brands among general

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readers or genre readers?

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A

No.

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Q

You mentioned Harlequin as an

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example of a niche publisher, correct?
A

Yes.

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M. Shatzkin

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Crowell- Collier bought the Free Press of

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Glencoe, Illinois, which is where the Free Press

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started, the man who started the Free Press was

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a man named Jeremiah Kaplan, who became a bit of

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a legend in the business, moved from Glencoe,

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Illinois to New York because his company was

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bought.

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My dad was the vice president of

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Crowell-Collier at the time and Jerry Kaplan

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stayed at our house for the first two weeks he

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was in New York. So I've been aware of the Free

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Press since I was 15.

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they started out as a much more academic

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publisher back in those days. They did sort of

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high quality political and social science. They

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have for years and years and years and years.

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They've always done --

So I followed them. I'm aware of

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them. Book publishing companies I would say

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with 99.9 percent certainty and accuracy do not

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advertise their brands, period. They advertise

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their books, only their books, and they mention

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their brand within the advertising of their

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books but brand recognition is based on the

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cumulative book recognition.

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That's why I said they did not

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spend any money on brand promotion, per se. I

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think I could actually make that statement about

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just about every publisher there is, which is my

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objection to the report I read.

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8

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10
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Q

The Free Press doesn't exist any

longer as an independent entity, correct?
A

Free Press is an imprint of Simon

& Schuster.
It was merged into Simon &

Q
Schuster in

2012,

correct?

Oh, well, you mean the most recent

A

Yes, well,

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reorganization that they've done.

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Simon & Schuster in the last month just

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announced a reorganization where sort of my

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sense, following my playbook, which is that the

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general, that -- well, it's not actually

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following my playbook. They don't have the

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basis of a B to C business at the Free Press.

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There's not enough -- their books are not like

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romance books or science fiction books where

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people read

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brand to read them.

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20

a year and will return to the

The value of the Free Press

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M.

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Shatzkin

If anyone built a brand by saying

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3

I'm going to make this brand understood by a

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bunch of people and advertise and promote to

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them to do that, I didn't see it. Somehow or

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another I missed it. Even if it happened once I

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would be amazed but it certainly did not happen

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repeatedly.

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So is it your testimony that all

Q

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brands in publishing including the Dummies brand

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for that series of books exist solely because of

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the sales of books that happened to happen?
Objection to

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MR. RASKOPF:

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the form of the question.

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It is my testimony that all

A

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brands, that is author brands, title brand,

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author brands -- sorry, imprint brands, series

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brands and publishing house brands are the sum

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total of awareness created by the books sold and

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read under those brands. There is very, very

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minimal impact of anything else.

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Do publishing houses undertake

Q

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marketing activities with respect to authors,

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for example?

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MR. RASKOPF:

Objection to

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M.

Shatzkin

form.

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A

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They

Generally speaking, no.

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undertake marketing activities on behalf of

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books, not authors.

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linked but not always, not often even.

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Q

Sometimes the two are

Is it your testimony that all

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marketing in the publishing industry occurs with

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respect to individual books?
MR. RASKOPF:

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Objection to

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the characterization of the

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witness' prior testimony.
A

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Essentially, yes.

Essentially

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publishers don't have any budget for anything

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else.

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That's where all the money is spent.

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figuring out how to spend the money to sell a

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book, and certainly a house would be aware that

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if it has six ads for six books in the New York

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Times book review, and they all say Harper

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Collins underneath that an agent or somebody

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else might say Harper Collins is doing a lot of

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hot books, but they're not trying to sell Harper

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Collins.

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Q

Each book has a budget for marketing.
So you're

They're trying to sell each book.
At the bottom of page six of your

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