Distribution Figures No Longer Protected As Trade Secrets

Posted on 10/25/2011 by Jim Pickerell | Printable Version | Comments (0)

In the case of DRK Photo vs John Wiley & Sons Inc. in the U.S. District Court for the District of Arizona Judge Frederick J. Martone denied the defendant’s motion to seal circulation information for 40 titles that were part of the complaint.

Publishing houses typically argue that the actual circulation of a particular title is a “trade secret,” and that it would damage their businesses if such information were made public. Image suppliers base their fees on the number of copies printed, but have no way to determine if the information supplied by the publisher is accurate.

The court found that “While defendant contends the list contains trade secrets, it fails to show how the information, if made public, can cause harm. Defendant has failed to show good cause, or a compelling interest, to shield this exhibit from the public. Accordingly, it is ORDERED DENYING defendant's Motion to Seal.”

In three of the 40 titles involved Wiley actually printed more copies in the first print run than they licensed rights to print. The company licensed rights to print a combined total of 1,622,000 copies of the 40 titles, but actually printed 4,379,805 and sold 3,492,833 copies. In every case the company printed more copies than they had licensed rights to print. However, in 8 of the cases the number actually sold was less than the number licensed to print.

Typically an invoice specifies a maximum print run for a certain fee (except in the case of Getty Images which offers unlimited printing for the fees they charge). Publishers normally give away a significant number of books and seldom are able to sell 100% of the copies they print.

It is hoped that this decision will make it easier for image suppliers to get actual circulation figures from the publishers they work with, but it seems likely that all publishers will continue to fight to keep circulation figures secret. Unless several judges in other jurisdictions choose to follow Arizona’s lead it seems likely that it will continue to be very difficult to get actual circulation figures from publishers.

The following is a list of the titles and their print runs. The numbers do not include any CD's or electronic uses of the material that was connected to the titles.

  Print Limit First Run   Print Books Sales Units
Allen Lab Manual (2) 40,000 12,722   66,869 58,651
Beran Chemistry (6) 15,000 7,912   46,226 38,689
Beran Chemistry (7) 10,000 10,080   50,043 43,601
Boyer Biochem (3) 20,000 7,170   30,484 25,640
Brady Chemistry (3) 20,000 14,896   209,127 81,458
Brown Organic Chemistry (3) 30,000 5,832   52,700 48,323
Cutnell Physics (5) 50,000 44,450   203,688 162,679
Grosvenor Nutrition (1) 40,000 9,805   47,687 24,613
Halliday Physics (6) 100,000 26,116   627,639 577,152
Halliday Physics (8) 100,000 19,276   429,269 294,803
Hein Chemistry (11) 65,000 9,874   80,279 65,756
Hein Chemistry (12) 50,000 10,296   80,362 63,894
Holum Chemistry (6) 15,000 15,319   36,674 31,838
Huffman Psychology (6) 25,000 20,024   80,094 60,465
Huffman Psychology (7) 40,000 33,872   103,848 82,047
Huffman Psychology (8) 75,000 29,715   89,823 69,822
Karp Cell (4) 40,000 15,389   58,089 46,937
Karp Cell (5) 40,000 19,784   66,310 51,069
Kowalski Psychology (4) 20,000 12,448   26,794 18,774
Malone Chemistry (6) 20,000 10,120   34,312 26,844
Marsh Landscape (4) 5,000 5,229   7,788 6,441
Pervin Personality (9) 20,000 6,012   29,931 20,758
Pratt Essential Biochemistry (1) 30,000 10,206   31,254 21,468
Pruitt Bioinquiry (3) 15,000 12,688   22,418 14,064
Raven Environment (4) 30,000 15,150   46,284 36,615
Solomons Organic (10) 40,000 10,068   58,868 29,262
Solomons Organic (9) 40,000 26,867   137,434 116,148
Solomons Organic (8) 40,000 19,440   114,453 69,927
Strahler Science (2) 15,000 9,900   28,127 21,492
Tortora IHB (6) 30,000 9,776   62,804 50,900
Tortora IHB (7) 40,000 13,818   59,609 49,915
Tortora PAP (10) 100,000 57,481   364,943 337,882
Tortora PAP (11) 100,000 66,091   353,794 318,093
Tortora PHA (10) 40,000 16,340   51,533 40,288
Tortora PHA (2) 30,000 14,674   53,511 44,707
Tortora PHA (9) 42,000 19,988   53,912 41,675
Trefil Physics (1) 10,000 9,889   20,502 13,485
Voet Biochemistry (3) 40,000 7,036   89,338 69,997
Voet Fundamentals Biochemistry (2) 40,000 14,527   57,708 39,393
Tortora PAP (12) 100,000 44,762   315,277 277,328
  1,622,000 725,042   4,379,805 3,492,893

Copyright © 2011 Jim Pickerell. The above article may not be copied, reproduced, excerpted or distributed in any manner without written permission from the author. All requests should be submitted to Selling Stock at 10319 Westlake Drive, Suite 162, Bethesda, MD 20817, phone 301-461-7627, e-mail: wvz@fpcubgbf.pbz

Jim Pickerell is founder of www.selling-stock.com, an online newsletter that publishes daily. He is also available for personal telephone consultations on pricing and other matters related to stock photography. He occasionally acts as an expert witness on matters related to stock photography. For his current curriculum vitae go to: http://www.jimpickerell.com/Curriculum-Vitae.aspx.  


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