Matthew Belloni at The Hollywood Reporter, Esq., has a copy of the ‘Tonight Show’ contract that’s been the subject of much speculation over the past few weeks. He can’t post the contract itself (I asked), but he described with considerable detail the parties’ positions:
[W]e’ve finally tracked down a copy of the O’Brien contract, and — lo and behold — NBC did define “Tonight” as the series that airs at 11:35 as far back as 2002. However, what may have emboldened NBC to move the program anyway was the absence of that key language from later amendments to the deal.
Read the whole piece for more.
As Belloni continues,
Insiders familiar with settlement negotiations say NBC jumped on that fact to argue that the "operative" deal was silent on the timeslot issue and even contained some NBC profit-participation boilerplate allowing NBC discretion to move shows as it chooses.
One problem with that argument: Any lawyer worth his 5% commission knows you’ve got to read an amended contract in the context of all other prenegotiated elements. O’Brien’s 2004 deal incorporated by reference and ratified all the terms of his prior deals — including the "Tonight Show" definition — and says any conflicts between NBC’s standard terms and the negotiated terms are governed by what’s been negotiated.
Fact is, an amendment is still an amendment, not a new deal, even if you also call it a separate agreement. NBC’s argument that the amendment — which specifically incorporated the old deal — was nonetheless actually a wholly-new deal would have been charitably described as "novel," which in the law is often synonymous with "bad." I don’t doubt that O’Brien’s lawyers saw right through NBC’s argument and held firm throughout the negotiations.
Most importantly, congratulations to O’Brien and his lawyers for keeping their eye on the ball for all these years: they contracted for — and this is the language in the contract — the "Tonight Show" defined as the "series that airs at 11:35," more specifically the "second network series after the end of primetime."
In certain circumstances — like some real estate transactions — there is language used so frequently that it has become the standard against which all other grammar and syntax is measured. Any deviation will likely be interpreted against the person who suggested it.
If you have one of those situations, be sure you know what the "standard" language is. Otherwise, focus on making the text of the written agreement reflect the reality of the parties’ understanding, not on adding in "gobbledygook" to make it look lawyerly.
O’Brien’s lawyers realized that and didn’t contract just for a particular name or for a bunch of legal gibberish, they contracted for a particular slot in the evening lineup. They understood the client’s goals, recognized the potential risk, and dealt with both in the contract in a clear, unambiguous manner that withstood a serious challenge.