Breaking Bad is seemingly everywhere this month.  With only a few episodes remaining, die-hard fans of the television show have gone into overdrive.   We too, have caught Breaking Bad fever, and started to wonder, do the final episodes qualify as trade secrets?  If one of the show’s employees were to release the general plot narrative, would the show’s owners be able to sue for trade secret misappropriation?  For more information, please see Kenneth Vanko’s excellent blog post on the subject.

In order to show that information is a trade secret, the owner must show that (1) it has instituted reasonable measures to maintain the secrecy of the information, and (2) the information is economically valuable because of its secrecy.  We will address these factors in turn.

Secrecy Measures

Although our knowledge of the exact security measures employed to keep Breaking Bad’s scripts a secret are somewhat unclear, rumor has it that the show’s creator has gone to great lengths to ensure secrecy.  According to Dean Norris, the actor who plays Hank on the hit show, “By the end of show, when we were about halfway through, all the scripts had all the juicy parts redacted, they were blacked out. It was like working for the CIA.”  Similarly, according to Laura Fraser, who plays Lydia, she received the entire script, but some of the pages had been “redacted, like an FBI document with pages and pages of blackness” so that only her lines were visible, and “if you wanted to read the redacted stuff you went into the office and read it on one computer.” 

According to Kenneth Vanko, “the scripts created by the show’s writers generally contain code names (they’re not labeled, for instance, Breaking Bad), ostensibly to guard against the impact of some accidental disclosure.”  Furthermore, the show’s contracts with outside vendors also involve an air of secrecy: many of the vendors don’t even know they’re supplying goods or services used by the show. Furthermore, the creator refuses to allow previews of the show before it airs.  Additionally, those with access to the script were likely required to sign non-disclosure agreements. Such measures indicate that the show’s producers have taken significant steps to ensure the secrecy of the show.

Is the Information Economically Valuable Because of Its Secrecy?

In determining whether the episodes of Breaking Bad can be considered trade secrets, we must consider what makes the scripts themselves valuable: is it their secrecy or their novelty?

Considering novelty first, in the wake of shows like Mad Men and the Sopranos, it is difficult to consider a drama with a male “anti-hero” for a protagonist to be a novel creation.  As an early review of the series put it, the show “lacks [Mad Men]’s originality and . . . is in many ways a bleaker male version of ‘Weeds,’ Showtime’s comedy about a widowed soccer mom who sells pot to keep up with the Joneses.”  The lack of novelty strengthens the argument that the show gains value because of its secrecy.  Furthermore, the fact that the main plot points (namely Walt’s methamphetamine manufacturing and his cancer) have been consistent since the show first began and that the show plays out over a period of two years means that viewers are constantly speculating about how the show will end, suggesting there is value in knowing how the show will end.  Additionally, the rapid increase in viewership between the end of season 5 and season 6, due to the show’s availability on DVDs and Netflix and word-of mouth, suggest that people have grown increasingly interested in the show as the end nears, possibly because of the fact that the show is about to conclude.  This has led to increased ratings and revenue, and suggests that the final episodes have significant economic value.

Are the Final Episodes of Breaking Bad Trade Secrets?

Based on the economic value of the scripts, as well as the intense efforts to maintain the secrecy, the final episodes of Breaking Bad would likely be considered trade secrets until they enter the public domain.  While their trade secret status is temporary, those in the know should keep this information confidential until the show’s final episodes officially air.