Recently, the Wall Street Journal reported on protective measures that studios and producers take to prevent scripts (and screenplays) from being publicly disclosed. (Ben Fritz, “Hollywood’s Latest Thriller: How to Keep Scripts Secret,” 10/14/13 WSJ, A1, A12.) Those measures provide an exemplary framework for protecting scripts and an exemplary starting point for protecting trade secrets. Those measures, with our comments, include the following:
- Only a limited number of pre-identified, authorized persons can access the script.
Comment: If a person does not need to review the entire script, then he or she should be authorized to access only the portion of the script that he or she needs to review. Additionally, each authorized person who accesses the script, or a portion of the script, should sign an appropriate confidentiality or non-disclosure agreement. Among other things, such an agreement expressly communicates the importance of maintaining the script (i.e., asset) in confidence.
- Only one person at a time can access the script.
Comment: Supervising such access also may be appropriate.
- An authorized person can access the script only at a certain facility.
Comment: Limiting the days on which and/or the time periods during which such access is allowed also may be appropriate.
- The facility has a security guard.
Comment: Allowing an authorized person to enter the facility only after (a) presenting a photo ID, (b) being photographed and (c) signing a log-in sheet also may be appropriate.
- The facility is gated and locked.
Comment: Security cameras also may be appropriate.
- Note-taking, photography and photocopying are prohibited.
Comment: Requiring all electronic devices with memory, communication capability and/or recording capability (e.g., a camera), including all smart phones, to be checked before entering the (locked) room where the script is viewable also may be appropriate. Further, Wi-Fi should not be available in the room where the script is viewable.
- There is only one physical copy, or only a limited number of physical copies, of the script.
Comment: The electronic version of the script, i.e., the electronic original, should be trackable and securely stored at an appropriate location. There should be, at most, only a limited number of electronic copies of the script, all of which should be accounted for, trackable and securely stored. Also, securely storing a back-up, physical copy of the script at an off-site location, perhaps in escrow, may be appropriate.
- The accessible copy of the script is printed on red paper, which is difficult to legibly photocopy.
Comment: Conspicuously marking each page of the script as “Confidential” and with other appropriate language also is appropriate.
- Off-site delivery of a physical copy of the script is limited or eliminated.
Comment: If a copy of the script (whether physical or electronic) is provided to a person off-site, i.e., outside of the secure facility and viewing room, then certain protective measures and comments set forth herein become even more important.
- Any authorized copy of the script is identified by and trackable through a unique digital watermark, which will appear on any copy or scanned version of the script.
Comment: Password-protecting (perhaps with a one-time password) and/or encrypting any electronic version of the script also may be appropriate.
- Persons authorized to access the script on their personal iPad are required to purchase a special iPad app that permits viewing the script for a limited period of time (e.g., several hours), after which the electronic copy of the script is automatically deleted.
Comment: Any such iPad (or other, similar device) should be subject to immediate inspection in order to confirm that the special app was installed, that the script was deleted and that the script was not transferred, compromised or misused.
- Persons authorized to access the script are provided an iPad with the script securely preloaded such that it cannot be transferred from the iPad.
Comment: Any such iPad (or other, similar device) should be returned by a certain date and time and, upon return, promptly should be inspected to determine whether the script was transferred, compromised or misused.