The War for Late Night_ When Leno Went Early and Television Went Crazy - Bill Carter [189]
Online, as might be expected given the discrepancy in age between the fans of the two comics, the pro-Conan movement was more like a power surge; Web comments ran heavily in his favor, and Twitter comments tipped to Conan over Jay by about fifty to one. Some commentators in the press started speculating that the battle with NBC was turning into Conan’s “Hugh Grant moment”—a reference to how the Tonight interview with the British actor after his arrest with a prostitute had fueled Leno’s march past Letterman in 1995.
If NBC cared about the rising ratings and all the attention, the Conan group didn’t notice it in the ongoing wrestling over how—or whether—to extricate Conan from his NBC chains. Polone thought the tone of the talks had changed after the manifesto, because it had made Zucker crazier and Conan stronger, a point he made sure to plant around the blogs. The NBC side interpreted that as evidence of Conan’s attack dog getting even more unreasonable. They were utterly convinced that Team Conan could sue all it wanted and NBC would win, because the contract Conan had signed contained no time-period protection. To the argument that earlier drafts did mention The Tonight Show as a program that started after the late local news, NBCʹs legal team replied that the clause was more than two contracts back and part of boilerplate in what had amounted to Conan’s Prince of Wales clause—that he would get the show if something happened to Jay.
In the deal Conan had signed in 2004 that guaranteed him the show in five years, no such language appeared, NBC argued, and even that earlier contract spelled out that Conan would sign a new contract before he ascended to the Tonight job. The NBC legal team considered Conan’s central pledge in his manifesto to be public posturing, because even as he declared that he would not participate in the “destruction” of the show, his legal team was stressing that he would, in fact, go on at 12:05. It frustrated Graboff and Andrea Hartman that the public didn’t seem to realize that Conan’s lawyers were promising he would go on even as he was proclaiming he would not.
They pointed to Rick Ludwin’s historical perspective. He had noted that The Tonight Show had originally aired at eleven fifteen, so there was precedent for moving its start time. The lawyers told the NBC negotiators that if they moved the show to four in the afternoon they might run into trouble with an arbitrator, but not for a shift of half an hour.
The terms of the contract specified that any dispute would be decided by arbitration, but either side could have always tried to file suit after an arbitration decision was rendered; of course, no one really had the stomach for that kind of extended ugliness, which was why they were sitting through so many unproductive sessions trying to work out a settlement.
Outside entertainment lawyers, considering the issue, saw big risks for both sides. NBC had strength in its contract position; it still seemed unaccountable that Conan’s team had overlooked the necessity of demanding time-period protection when virtually every other big star in late night had it. But the Conan side might have some tenuous standing to challenge the contract, these lawyers said, thanks to that previous deal. A more effective argument, several others emphasized, would have been that Conan had the right to expect his Tonight Show would remain at 11:35 because of its long history there. NBC’s own lawyers didn’t buy that interpretation, saying the contract trumped all.
If it came to a public legal battle, however, no one had any doubt who would win the sympathy points. Conan was a popular star apparently at the mercy of the whims of corporate executives. For NBC, the fact that he also had a public forum