Nightmare at NBC: parsing the legal ramifications

Host Conan O'Brien gestures onstage during the 58th annual Primetime Emmy Awards at the Shrine Auditorium in Los Angeles in this August 27, 2006 file photo.

LOS ANGELES (Hollywood Reporter) - Does Conan O'Brien's contract give NBC the right to bump him to 12:05 to make room for Jay Leno at 11:35?

That's the $40 million legal question hovering over O'Brien's open defiance Tuesday of NBC's plan to move his "Tonight Show" 30 minutes later. Despite all the hoopla, it's really a simple query.

If O'Brien's deal says his "Tonight Show" will be broadcast at 11:35 p.m. (or the equivalent post-local news slot in the markets that air him earlier), then NBC would be in violation of his contract by attempting to bump him.

If there isn't any time-slot language in his deal, O'Brien's refusal to take the 12:05 slot would put him in breach if he doesn't do his show, presumably allowing NBC to void his deal without paying him off.

NBC already has staked its position in the New York Times:

"The contract, NBC is arguing, guaranteed Mr. O'Brien would be installed as host of 'The Tonight Show' -- and unlike many other deals for late-night stars, Mr. O'Brien's contract contains no specific language about the time period the show would occupy, NBC executives said."

David Letterman, for instance, has a time-slot language in his deal, so some are already blaming O'Brien's lawyers for not thinking ahead and specifying his slot. But it's likely not that cut-and-dried a legal issue.

If the breach-of-contract claim ever got to court, perhaps O'Brien could argue that specifying a time slot was not necessary because "The Tonight Show" has aired in essentially the same time period for decades. O'Brien already suggested in his missive Tuesday that moving "Tonight" essentially makes it a different program; in other words, he's saying the essence of "The Tonight Show" is that it follows the local news. NBC would ask where in his deal language it says that, but the history of the show is on O'Brien's side on that issue.

Also, the name implies a show at night, not during the early morning. NBC could counter that its "Late Night" airs in the morning hours, but a "Tonight Show" that doesn't air, you know, tonight, would be a good fact for O'Brien. (Letterman appeared to agree with his rival, joking Tuesday that it should be renamed "The Tomorrow Show.")

O'Brien also could argue that by replacing his show with something starring the former host of "The Tonight Show," NBC effectively breached his agreement because viewers would believe that Leno is hosting the "real" "Tonight Show," regardless of its name. NBC could be in violation of the state's requirement that parties negotiate deals in good faith. Again, NBC would likely point to O'Brien's deal and ask where it specifies that it can't hire Leno to do another show.