Monthly Archives: January 2010

NBC's Jeff Gaspin said the other day that Jay Leno's forthcoming Tonight Show would be a "hybrid" of the old Jay Leno Tonight Show and the 10 PM Jay Leno Show. In other words, it will be a mix of (a) the old show with two guests and (b) the exact same show with one, plus they'll put the couch back. I sure hope it's more than that.

Here's a question from one of those readers who doesn't want his name used for some reason…

They're saying that if Conan goes and does a new show for another network, he can't take his "intellectual property" with him like the Masturbating Bear and Triumph the Insult Comic Dog. Why not? Why can't he take his act with him? Isn't this piggish of the network?

I know it's hard to believe but networks have been known to do piggish things. In this case, there's a justification that may make sense on some levels. Let's take the Masturbating Bear, for example. Now, I don't know who came up with that idea but let's say it was a staff writer on Late Night with Conan O'Brien. That writer wasn't working for Conan. He was working for NBC and paid by a check that said NBC on it. To the extent rights are transferred when a writer is paid for his work, those rights transferred to NBC, not to Conan O'Brien. Why should Conan be able to have that bear masturbate on a show at Fox? He didn't create it. He didn't pay for it.

Now, some would say, "Well, it became Conan's bit. It's part of his show." Well, yes. But consider this. Paramount Pictures owns Star Trek. The character of Mr. Spock is part of Leonard Nimoy's identity and Mr. Nimoy obviously had a lot to do with the nature and worth of that character…but Nimoy is not free to take Mr. Spock and portray him in a show for Disney. Spock is "intellectual property" claimed by Paramount…and that intellectual property is worth a lot. You can understand why they would assert those rights.

Now, some of those same people would say, "Yeah, but what's a Masturbating Bear worth, anyway?" Probably not much. (I'm tempted to say "A handful.") But NBC has two concerns here. One is the precedent. Some "intellectual property" from their shows does turn out to have enormous value. Look at just the many properties spun off Saturday Night Live into merchandise and feature films — Wayne's World, The Coneheads, The Blues Brothers, etc. We don't know the ownership or split on all those but we can understand how anyone who might have a claim would want to claim as much of them as possible. What NBC is doing is what darn near any company (or even any individual) does in these matters, which is to quickly assert they own everything. They can always, in later discussions, back off those assertions. After all, it's harder to go the other way…or to stake your claim later.

Which brings us to their other concern. Even though NBC has settled with Conan and he's free to go to Fox or QVC or wherever, they're still going to have business relations with him. He has this 18 year body of work for the network and both sides will want to exploit it, reuse it, market it, excerpt it, draw from it, whatever. Down the line, he may need or want things from them and they may need or want things from him. So they're staking out future bargaining leverage. Down the line, if they need him to sign off on some syndication or home video plan not covered by existing contracts, they can say to him, "Hey, Coco…okay this and we'll let you have your Masturbating Bear, plus just to show what nice guys we are, we'll throw in the FedEx Pope!" That kind of thing. It's just bargaining chips.

I don't know if Triumph is included in this. Bob Smigel has used that character in so many other venues that he may have a special deal. Just because something appeared first on Conan's show doesn't mean it's part of NBC's "intellectual property." It all depends on the contracts. The Masturbating Bear may not be of much value to NBC in the future. In fact, they might do better to tell Conan, "You can have him if you pay us 50% of any future merchandising or licensing." But they're concerned about the precedent, and it's usually their default position to insist they own everything until it's proven — as it sometimes is — otherwise.

Deals are being announced today. Conan gets a big settlement and will be free to go off and do another show as of September. Jay goes back to The Tonight Show right after the Olympics. NBC is saying that even with paying off O'Brien and his crew, they'll make more money with Jay there. That may well be true…and the fact that NBC believes that is pretty much what all this has been about. They didn't decide to bump Conan from 11:35 because they thought his hair was too frightening before Midnight.

And it isn't just NBC Corporate that anticipates more $$$ this way. Based on what NBC execs are saying (and to some extent on what they're not saying), various of their affiliates were clearly poised to change the schedule if the parent network didn't. Jeff Gaspin, the Chairman of NBC's parent corporation said in one interview that perhaps a third were poised to do some heavy rearranging. He didn't say what they would have done but presumably some were going to bump Leno altogether for other programming while others were going to slot him after their local news, thereby approximating the old configuration that had worked better for them. In some markets, Conan would probably have been shoved back to his old time slot.

A third is a pretty high, unprecedented fraction for a threat of this sort and NBC must have figured it would get higher. Some of those stations would surely have increased revenues and others would have quickly followed those stations' lead. My guess is that Gaspin and Jeff Zucker are sincere and probably even honest when they say that their schedule — Leno at 10, O'Brien at 11:35 — was working for the network, maybe even close to expectations. They surely wished both guys' numbers were higher but NBC could have lived with what they were getting. They could have waited to see if and when things might improve.

The more astute among you may notice a subtle contradiction here. They wished they could have stuck with their plan but the new one will make them more money.

In the up-is-down, down-is-up world of network television, this all may be true. Before Leno was saying (and saying and saying) that NBC stands for "Never Believe your Contract," folks were saying it stood for Nothing But Cash. Even when these guys screw-up, they often make staggering sums of money. All over the Internet, folks are asking, "How does Jeff Zucker keep his job?" And the answer to that is probably found in bottom lines on balance sheets. Even if Zucker has destroyed their prime-time and late-night schedules — and the blame there may not all be his — those are not the only areas in which the corporation gains revenue. He apparently has performed well in some of the others…and like the man said, they may still show a decent profit in late night, albeit less than they'd hoped.

As even Mr. Letterman has noted, this is all about money. Pretty much everything done in network television is, and absolutely no one in this whole soap opera has made a move in order to take a pay cut. Every decision — the network's, Jay's, Conan's, everyone's — has been done with the intent of drastically improving income. Even the other hosts attacking Leno these days must think it's good for business. Jay, let's remember, is about to become a competitor again.

But there's also a lot of fighting to save face going on here, a campaign to not be blamed for mistakes. As we said the other day here, a lot of 'em — not just one, not just two — were made. It remains to be seen precisely which moves they were and we're in for a lot of spinning and damage control in that regard. On with Charlie Rose the other night, Mr. Zucker was arguing that the deal that took The Tonight Show from Jay and gave it to Conan (i.e., the guy they just took it away from) was not a mistake because it kept Conan at NBC, kept him from competing, kept the profitable Leno/O'Brien tag team intact and generating cash for five more years. Losing Conan then, he said, would have been a mistake.

So let's review. Killing The Tonight Show with Jay Leno was a wise move because it kept Conan around for five more years and during that time, he wasn't on Fox or ABC competing with Jay.

And putting on The Jay Leno Show at 10 was a wise move because it kept Jay around and he didn't go on Fox or ABC and compete with Conan.

And now, killing The Tonight Show with Conan O'Brien was a wise move because they have Jay available to replace it and he'll do better there.

I'm not saying the above is completely wrong, at least not if you care only about short-term profits, which is sometimes all the industry does care about. Zucker may well have had an insoluble problem back when O'Brien's people said, in effect, "Conan gets 11:35 or he walks." When you have two trains and one track, you're probably going to have a train wreck, no matter what. All the machinations and rearrangements have stemmed from that premise and they've been maddening for Leno and O'Brien and all who work for them or love their shows. They haven't done a lot for the image of NBC or the proud heritage of its late night schedule, either. You and I might care about those things…but we don't run big networks.

"At the end of the day," as people say on cable news shows every three minutes, a lot of people at NBC will probably be quite satisfied with how it all turns out. Because they delayed the train wreck for five very profitable years…and they're still making money. And that's really all this is about. That and not getting blamed for mistakes.