Continuing the countdown to the release of Star Wars Episode IX, sports and media lawyer and lifelong Star Wars fan, John Devine, looks at what Star Wars can teach us about the preserving the value of perhaps the most valuable asset of any business, your confidential information.
“We could keep it a secret?” Anakin Skywalker, Episode II: Attack of the Clones
Star Wars has taught us much about the management of confidential information. The lineage of key characters is of particular interest, with Episode IX: The Rise of Skywalker being no exception. I have my theories, as I am sure you will too…
But even before the advent of the internet, worldwide media and fan interest in every aspect of the look and plot for the sequel films led to Lucasfilm taking a number of steps to protect its confidential information.
Plotting out NDAs
Plot leaks are damaging to a film’s potential box office, so it is increasingly common for actors to have to sign non-disclosure agreements (NDAs) and, as a further preventative measure, given the pages and lines for their part only. Lucasfilm even began keeping a log of who leaked what and where.
David Prowse, who portrayed Darth Vader, remarked when filming on Empire: “We had a scene where I have Han Solo in a torture chamber, but I have no idea how he got there. There is so much money involved now – no one tells you a thing. You get your script sections with dialogue and whatever descriptions were incorporated, and [Empire director, Irvin] Kershner would give a sort of briefing as to what went where, but nobody gave away the plot.”
While his voice was not actually heard in the original trilogy films, Prowse made up for this away from the set, much to Lucasfilm’s chagrin. Kershner remarked: “David talks his head off.” 
Mark Hamill, who played Luke Skywalker, revealed: “They gave David dummy pages of scripts on this movie. He was saying lines I knew were not real. But he didn’t know I knew.”
Protect your best interests
Lucas and Kershner had taken Hamill aside moments before filming Luke’s climactic confrontation with Vader on the gantry in the bowels of Cloud City, to tell him what Vader would actually say to Luke once James Earl Jones recorded his voice for the final film.
Prowse had been told to make specific hand gestures – an outreached open hand, a raised clenched fist – at key points in the dialogue, unaware that the lines he spoke would not make it to the screen.
Hamill had to react to the briefing he had just had from Lucas and Kershner, keeping possibly the biggest plot twist in cinema history secret until the Empire premiere, which was held in London in 1980.
Kershner recalled: “When the picture was shown at the Odeon, Darth Vader was sitting in back of me. At the point of the big reveal, he tapped me on the shoulder and said ‘why didn’t you tell me? I would have done it differently!’”
So, while an NDA is most certainly best practice, do you actually need one for certain information to be regarded as confidential?
What constitutes a breach of confidentiality?
The objective test (established in Coco v AN Clark (Engineers) Ltd  ) is whether “a reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence”.
Under English law:
- the information must have the necessary quality of confidence (which will ultimately depend on the circumstances, taking into account, for instance, any information which is already recognisable as ‘public knowledge’ or ‘in the public domain’);
- the recipient must have agreed, or must know (or ought to have known), that the information is confidential; and
- there must be an unauthorised use (e.g. by disclosure and/or reliance) of that information to the detriment of the rights holder.
All three criteria must be met in order for a claim for breach of confidentiality to be able to succeed.
While an obligation of confidentiality can arise without the parties actually entering into a formal agreement, it is of course far easier to evidence in writing in an NDA to get the recipient to:
- acknowledge the confidential nature of the information being provided; and
- accept to be bound by an express duty of confidentiality in relation to that information.
Otherwise, it will be far harder to prove your case in reliance only on witness testimony, correspondence and circumstantial evidence.
But how does this work if recipients are already on the payroll? Surely confidentiality is intrinsic to this relationship?
“Your eyes can deceive you. Don’t trust them.” Obi Wan Kenobi, Episode IV: A New Hope
In the interests of certainty, terms and conditions of employment should address this expressly according to the role and seniority of the personnel. Information imparted to employees can be categorised in broad terms as:
- information which is not confidentialand is already available to the public, as well as recognisable custom and practice in the trade;
- information with some element of confidentiality, whichan employee could reasonably be required to keep secret while still employed, but not necessarily afterwards or, if so, for a limited period; and
- trade secrets, which would remain confidentialboth during employment and afterwards, perhaps indefinitely depending on their specific nature.
Getting an employee or contractor to sign a professionally-drafted confidentiality letter or NDA which, crucially, reflects and addresses the nature of your business, before disclosing any information, is the most prudent and practicable way to address this risk.
The definition of what the employer regards as confidential information will be key in this respect. Those who are privy to trade secrets should also undertake refresher training on a regular basis to reinforce the issue, making it far easier for the employer to be able to establish that they ‘ought to have known’ in the event of a breach.
Consider using a project name
The preservation of confidentiality carried over to Episode VI: Return of the Jedi. Such was the anticipation for the second sequel, as well as a growing tendency among contractors to hike their prices knowing that Lucasfilm was buying, it was decided that the third film project would be portrayed externally to third parties as a horror movie pseudonym, “Blue Harvest: Horror beyond imagination”.
As many suppliers sought to capitalise on the back of Star Wars’ success, Empire producer Gary Kurtz commented that a “300% to 400% increase” in many basic supply chain costs between the original film and Empire contributed to Empire’s budget difficulties (see our earlier article Episode 4: Managing Risk and Deal Finance for more details).
Using a project codename therefore allowed Lucasfilm to still pay a fair price for the supplies they needed, rather than having to bear an inflated ‘Star Wars tax’ for any product or service they tried to source openly.
“It’s an older code sir, but it checks out…” Admiral Piett, Episode VI: Return of the Jedi
So, the lessons here are:
- Ensure, first and foremost, that access to confidential information is restricted (on a ‘need to know’ basis if appropriate). Remember the Empire actors’ pages were ‘scene by scene’.
- Where disclosure is appropriate and/or required, ensure that any information you wish to treat as confidential is only disclosed in circumstances importing an obligation of confidence. The best way to do this is to evidence that obligation in writing by asking the recipient, whether employed or otherwise, to execute a confidentiality letter or NDA.
- Consider whether the matter or venture to which the confidential information relates would benefit from an unconnected, code or project name. This is already a common approach in most corporate finance transactions.