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 described with 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.
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.
The problem with NBC's position is that 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. Any conflicts between NBC's standard terms and the negotiated terms are governed by what's been negotiated, and therein lies the rub.
An amendment is 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 new deal is a bad argument. O'Brien no doubt held firm throughout the negotiations to that principle. The language from the old deal they held firmly to was this: "Tonight Show" was defined as the "series that airs at 11:35," more specifically the "second network series after the end of primetime."
O'Brien contracted for a particular slot in the evening lineup. They understood the client's goals and implemented it in the contract in a clear, unambiguous manner that withstood a challenge. On the other hand, NBC--some studio exec who probably didn't have a long time horizon anyway-- probably didn't anticipate the kerfuffle of the change of shows, or if it did decided to accept that risk.
