Confronting Trump and Nixon: Comedy’s Changing Perspectives

In the wake of the January 6 Capitol attack few would dispute the assertion that Donald Trump is the most controversial president of our lifetime. Surely, he seems to bring out the very worst in his detractors: the mainstream media loathes him and he in turn famously berates them as “the enemy” of the American people. The comedy community makes a feast of trump jokes and, as some comedians have noted, the Trump jokes are literally writing themselves. To say the least, these jokes can be pretty tough stuff and are clearly intended to hurt mightily.

It is worth stating at this point that despite Trump’s departure from power, the current moment can still be fairly regarded as the Trump era, thanks to the continuing impact of the phenomenon of Trumpism in our cultural life.

The controversy of the Trump era recalls another president in America’s modern history: Richard Nixon. Aside from his frosty, adversarial relationship with the media, Nixon, in fact, created a so-called “enemies list” of people to be hunted down by the government; predictably, the list included not a few members of the media. Former Washington Post reporter Carl Bernstein calls the Nixon’s presidency a “criminal presidency.” Ultimately, Nixon was forced to resign the presidency in disgrace. Yet, it seems rather noteworthy that the comedy community of Nixon’s time did not go after him with anything resembling the venom and virulence with which Trump is assailed by comedians of his era. Question is, what accounts for the different reactions of the comedy community to the two uniquely controversial presidents?

America in the Nixon Era

As comedy legend Dick Cavett noted, the comedian [in that era] simply set out to think about an event and try to find some humor in it. A classic example can be seen in one of Cavett’s jokes about Watergate. In it, he cracked that the White House “plumbers” in trying to do their job of plugging leaks instead opened a Watergate. Speaking of his experience with Watergate, Cavett said, “I set out to do an entertaining talk show, never dreaming that I’ll get up to my neck in a national scandal.”

Cavett’s comments aptly capture the way comedy was done in the period before the contemporary era. Back then, comedy saw itself in a different role in society: it stayed in its own lane where the whole act was about making people laugh with whatever subjects would do the trick, whether the subjects were drawn from the political arena or elsewhere. Thus, comedians did not directly venture into the politics of the day to take sides in the political controversies of the moment. (Despite its apparent ideological bent, even the Smothers Brothers Comedy Hour, which many would consider the outlier in that era, hewed closely to the goal of provoking laughter albeit at Nixon’s expense. The show neither wore its politics on its sleeves nor betrayed a burning desire to help the political opposition.)

Perhaps there was a good reason that comedians opted for that approach: their audiences, somehow, seemed to want it that way. Consider, for instance, the Watergate scandal, the biggest disaster of the Nixon presidency. According to a 1973 article in The New York Times (“Watergate Comics Find the Joke Is on Them,” by Roy Reed, September 8, 1973), most comedy audiences across the country, with the exception of a few isolated spots like New York, did not find Watergate jokes all that funny. “Watergate just isn’t a laughing matter for most of the nation’s standup comedians,” began the article, which went on to note that, “even scarcer than anti-Nixon Watergate jokes at the clubs are pro-Nixon jokes. Indeed, an informal nightclub survey didn’t turn up one of them.” From all indications, it was indeed a different time in the culture: “When they subpoenaed the President, that’s not comedy,” said Ken Barry, a comedian from that time.

Enter Trump and the Muckrakers

In today’s divisive political climate, it is difficult to imagine a comedian expressing the sort of sentiment expressed above by the comedian in the Times article. The simple reason is that we now live in the era of “muckraking comedy”, an overtly political and weaponized comedy that is news-based but lacks the commitment to objectivity that news professionals feel obliged to practice. The essence of this genre of comedy, which has been growing for the past two decades, consists of holding a viewpoint and using the vehicle of comedy to advance that viewpoint. As comedian Bill Maher rightly observed about today’s comedy audiences, “they’re there more to clap for the opinion they already believe in than to laugh. That’s what changed,” he said, adding, “It became more important to cheer for your team than to actually have a laugh.”

To be sure, the old laughter-based comedy of Cavett’s generation of comedians still exists today. However, in contemporary pop culture and the political climate that surrounds it, such comedy, clearly, has taken a back seat to the far dominant and more appealing genre of muckraking comedy, which is what reels in the all-important ratings. Given Trump’s outsized impact on the news cycle and the intense loathing of the man by those on the left, any left-leaning comedian of any significance today can only ignore anti-Trump muckraking at his or her own career peril. For instance, during Trump’s time in power, NBC’s Jimmy Fallon was forced to confront this new reality in his late-night competition with CBS’s Stephen Colbert: thanks to anti-Trump muckraking, Colbert the new-kid-on-the block in late-night comedy did seize the late-night ratings crown from Fallon, for at least three consecutive seasons through 2018-2019, when Colbert snagged a hefty 3.82 million nightly viewers compared to 2.44 million for Fallon and 2.04 million for Kimmel, according to Nielsen data.

Fallon’s troubles began in September 2016 when he famously mussed Trump’s hair during the latter’s appearance on his show, a gesture interpreted by angry audiences as him “normalizing” Trump. Over the three – year period since then, Fallon’s audience numbers have plunged whereas Colbert’s have spiked. Needless to say, Fallon has since learned his lesson and dutifully joined the anti-Trump muckraking party as a matter of sheer self-preservation. Samantha Bee is another leading comedian of the muckraking era who has reaped the benefits of anti-Trump advocacy. Acknowledging the role of outrage in her comedy, Bee noted in an interview with Canadian TV journalist Rosemary Barton that in her comedy world she found that “people care about the world” and aren’t so interested in jokes about celebrity antics anymore.

Under the prevailing circumstances, hardly any left-leaning muckraking comedian today particularly cares to either hide the political undertones of their act or the fact that they’d be glad to take down the Trump presidency if they could. And sometimes, it can get downright personal, to boot. Case in point: Bill Maher’s New Rules segment about Trump’s supposed narcissism (See Real Time with Bill Maher episode of September 21, 2018). In the six-minute span of the segment, Maher lamented how narcissism has rendered the president a stupid person who considers himself infallible and is therefore unteachable and can never be corrected. He likened Trump’s brain to a cell phone with a full mailbox where one can call but cannot leave a message.

Though more noticeable on the political left, muckraking comedy, by its nature, is a phenomenon that also exists on the right of the political spectrum. Thus, the muckraking comedy era isn’t all anti-Trump. To the contrary, the former president does indeed have some powerful muckrakers in his corner. Fox’s Gutfeld! a classic muckraking show, which according to Nielsen data is the current late-night ratings king, is a case in point.

In a nutshell, Greg Gutfeld, the show’s eponymous host, is the political right’s answer to what happens on the political left, complete with both his unabashed defense of Trump and the (correspondingly) brutal sarcasm he heaps on Joe Biden’s person and presidency. He joined the late-night fray this past April.

Making sense of what may not seem to add up

If the foregoing makes anything clear, it is that comedy’s reaction to the Nixon and Trump presidencies is a tale of two eras in comedy, which at bottom reflect a change in cultural attitudes. This cultural shift, coinciding with the transition from traditional to muckraking comedy, explains why Nixon and Trump, both right leaning and uber-controversial politicians could have been treated so dramatically differently. Whereas the audiences of one era preferred that comedians not take partisan political positions, the audiences of the other era rather wanted to be entertained with jokes that espouse an ideological point of view and would reward comedians who play the part. In this scenario, one can see that Nixon avoided the assaults of muckraking comedy simply by having existed in an era when the phenomenon did not yet exist. Trump’s presidency, however, was quite literally born into the era of muckraking comedy and he simply couldn’t avoid its harsh spotlight if he tried.

Therefore, to those who wonder about the disparate treatment of two personalities-of-a kind by the comedy community, one simple observation should suffice: Were Nixon were in power today, it’s a safe bet that he’d probably be treated with as much hostility as Trump is facing. Not least because Nixon remains the only person ever to resign the presidency, thanks to the worst political scandal of modern America.

Editor’s NoteAt the moment the author is seriously working hard to finish writing a new book on a rather tight deadline. So please bear with us if upcoming posts do not appear as regularly as they should during this, hopefully, quite short period. However, in the meantime, please do dig into the many other posts contained in the archives, which are readily available for your reading pleasure. There are two “categories” of articles: “Comedy Legal” and “Other Controversies.” You can find all of them at the “Categories” box on the sidebar. Please keep reading!

MARC MARON Plus ADAM CAROLLA: When Patent Trolls Rain on Comedy’s Podcasting Parade

Maron_Carolla_photo1In the comedy industry these days, it seems like more and more people are talking about podcasting. In the new book Comedy Under Attack: the Golden Age and the Headwinds (http://comedyunderattack.com), podcasting was portrayed as one of the hot new things in modern comedy and thanks to his WTF podcast Marc Maron was toasted as its foremost trailblazer. But Maron isn’t the only comedian who has made giant strides in that arena. There is Adam Carolla, too, a comedian who reportedly holds the record for having the “most downloaded podcast” around. For Maron, Carolla and their comedy brethren the podcasting movement had been flourishing in peace until recently when they came under assault by a group of folks who have been referred to, rather disparagingly, as ‘patent trolls’. (By way of simple explanation, ‘patent trolls’ are guys who make their money by registering patents for products or processes that they themselves do not use but would sue other people who actually use those patents for any purposes. In more polite language, they are referred to as ‘Non-Practicing Entities’ or NPEs.)

But, first, here’s the story:

Sometime in early 2013 Maron received a letter from an East Texas company known as Personal Audio informing him that his operation of his podcast show was a violation of their software patent. The message was clear: he needed to either license the patent from them at a fee or face legal consequences. While Carolla didn’t get a [warning/demand] letter: the Personal Audio people actually did hit him harder than they hit Maron when in January 2013 they sued Carolla’s ACE Broadcasting Network over his self-owned podcast ‘The Adam Carolla Show.” Personal Audio is reportedly offering to settle the case against Carolla for $3million. (The company has also gone after comedian Chris Hardwick, the current host of Comedy Central’s @ Midnight, over his ‘Nerdist Podcast’.) By the way, “podcasting”, a term coined from a mix of ‘I-Pod’ and ‘broadcasting’, is a technology that basically allows users to pull down MP3 audio files onto their computers or personal digital audio players (like iPods) from a podcasting website.

And from the look of things, the company (founded by a guy named Jim Logan) isn’t just going around making threats and bloviating about consequences; it actually seems to play pretty hard ball: for instance, in 2011, it got a jury to award it more than $8million against Apple, Inc, on its claim that Apple’s i-Tunes playlists infringed its patent. Personal Audio has also forced big names like Samsung, Motorola, Sirius, Amazon, RIM and others to enter into patent licensing agreements with it after it sued them in patent court; it has also sued NBC and CBS.

Not surprisingly, all this stuff sounds pretty offensive to Maron: “We’re just guys talking on microphones out of our garage…then someone comes out of nowhere and says we owe them money.” For his part, Carolla has dug in his heels and has vowed to fight it out with Personal Audio in court. This past March he launched a fundraising campaign, complete with a promotional video. His “Save our Podcasts Defense Fund” (http://fundanything.com/patent troll) aims to raise about $1.5 million for the battle. (As of April 24, they’d raised more than $363,000 and counting.) That same month of March, Carolla and Maron organized a show in Redondo Beach, California, attended by talk show host Jimmy Kimmel, Drew Pinsky and others, in support of Carolla’s legal defense fund.

To be sure, patent trolls are a matter of big concern to comedians. For starters, alongside all the blessings of social media, podcasting has become a quite valuable new tool for comedians today in comedy’s “golden age”. Podcasts are pretty cheap to produce and distribute and pretty much anyone with a computer and microphone can manage to get around to doing it. To comedians, the chance to reach their audiences in this way is very appealing. Needless to say, if the patent trolls win and licensing fees become the norm, then podcasters will have to pass on the cost of licensing fees to their listeners. Long story short, this whole thing creates the risk of a new ‘pay-to-play’ model that will quickly transform the economics of podcasting to the disadvantage of comedians.

And there’s another reason: People have talked about ‘p.c.’ (political correctness) and have knocked the so-called ‘pc-brigade’ as one of the major forces out there today that are giving comedy big-time hell. On their own, patent trolls may be less visible to many people as a threat to comedy, but the threat they pose to comedy is no laughing matter: for instance, unlike the pc – brigade who are merely pursuing their vision of a good society, the patent trolls are in it only for the money and in so doing they are reaching their hands more directly into the pockets of comedians. Even worse, they are threatening to curtail the further growth of podcasting in the comedy industry, especially among the newbies and the less established comics who have less money and almost certainly lack the clout of guys like Maron and Carolla.

Aside from the comedy industry, patent trolls have also been a real pain for people trying to make a living in other sectors of the economy like coffee houses, hotels, restaurants, supermarkets, real estate agents and so on. And surely the activities of these patent trolls have done them no favors in the court of public opinion. For instance, one of the most aggressive patent trolls out there is one called Innovatio IP Ventures from California, which claims a large number of patents in the operation of Wi-Fi services.

In a rather brazen tactical decision, Innovatio simply chose to ignore the product manufacturers (like Cisco and Motorola) and instead went directly after hotels, coffee houses and other end users of Wi-Fi, threatening them with expensive lawsuits and demanding a couple thousands of dollars in licensing fees. Soon after it was formed in early 2011 by a California lawyer named Noel Whitley, the company reportedly sent over 8,000 demand letters to end users across all 50 states literally asking them to pay up or come to court. The calculation here is clear and simple: end users who are not sophisticated about patent matters would rather pay a few thousand dollars than engage in very expensive patent litigation in federal court.

Not surprisingly, many commentators out there have openly lamented how much things have gone off the rails and so far away from the original goal of the patent law which was to reward genuine inventors like Thomas Edison and Nikola Tesla (think the light bulb, cameras, motion pictures and more) rather than guys like Jim Logan and Noel Whitley, who seem to be smiling to the banks today with bundles of (other people’s) money.

In the overall scheme of things, guys like Maron who are merely “talking on microphones out of their garages…” to their friends and fans are obviously just “end-users,” just like all the hotels, coffee houses and real estate agents who are getting hammered by patent trolls. And Carolla, too, of course! As one might expect, these mere end –users wouldn’t likely know much about all the technical mumbo-jumbo of patent-speak, much less the complexities of high-wattage patent litigation in federal court. Ironically, these hapless end-users are the very people that the patent trolls have chosen to confront rather than the big manufacturers and patent vendors who have both the technical knowledge and the money to fight back against the patent trolls.

But exactly what does the patent law do to help the little guy, Maron and Carolla included? Well, not a heck of a lot, at the present time at least. To the contrary, the patent trolls seem to be having a field day. The federal courts have said that when patent trolls go after anybody, including poor end users, the patent trolls are – get this!- exercising their First Amendment ‘right to petition’ the government. Innovatio played this hand brilliantly in 2001 when it beat back Cisco’s attempt to protect its end users from Innovatio’s ‘smash-and- grab’ tactic. What a funny new way for a patent troll to use the First Amendment, the American comedian’s best friend, of all things.

So, just where do matters stand now for Maron, Carolla and the comedy industry in the battle against patent trolls? Well, here’s the thing: First, Carolla had no choice but to do something since he’s already been sued. Yet his decision to push back pretty hard is a smart move in itself. For instance, if they were to enter into settlement negotiations later on, his hardball tactics so far would make him a stronger player in those negotiations with Personal Audio. Certainly, it would be wise for him not to take the settlement option off the table because complex litigation such as this one can seem like an unruly horse galloping to an unknown destination. Plus, Personal Audio’s case may not be so weak in the end; after all, its prior encounters with powerful entities like Samsung and Motorola so far have proven that Personal Audio can actually win games. In short, no one knows the strength of Personal Audio’s case yet. So, it’s not yet party time for the podcasters.

Yet, going forward, the comedy industry ought to do more than just express support for Carolla and here’s why: Even if Carolla wins, it doesn’t necessarily mean that Personal Audio will shut down or that its lawyers won’t find some obscure ground to go after any other podcasters. (Not unless, of course, its patent is declared invalid.) Generally, the result of any litigation binds only the parties involved. Therefore, in the long run, the best solution is to change the law so that every podcaster is protected against patent trolls for good.

The expected game changer here is the proposed legislation called ‘the Innovation Act,’ which passed the House of Representatives in December last year. Concerning the menace of patent trolls, the best part of the law for comedians is the provision that protects end users by allowing the big tech guys like Cisco, for instance, to step into the shoes of their customers and take on the patent trolls on their behalf. The proposed law would also discourage the activities of patent trolls by forcing anyone who files a patent lawsuit to pay the legal fees and other costs of the guy who ends up winning the case.

And then there is the part that requires people filing such lawsuits to lay out their cases in such great detail that then makes it real easy for the courts to dismiss the cases pretty early on in the process if the cases have no merits. Unlike the situation we have today, the new law will force people filing such patent lawsuits to spend time and money in doing some pretty extensive research on their patent infringement claims. And they are required to have all this stuff ready right when they walk through the courthouse doors. To be sure, guys like Maron and Carolla would be sitting pretty today if the proposed new law were already in place.

Yet, no matter how this thing ends for Maron and Carolla, there’s a lot more to the fight than just the two comedy gentlemen. In reality, for the reasons stated above, the entire comedy industry has a dog in this fight, indeed a big one. And Carolla was correct when he said: ‘They are suing me, but they are coming after you next.’ To be sure, this problem with the patent trolls isn’t going to go away on its own, especially because the patent trolls have already seen the dollar signs and will do all they can to stick around for the money. To solve the problem, the patent trolls will have to be forced out of the game.

In the end, the one great thing to come out of the Maron and Carolla situation is that their struggle has focused the comedy industry’s attention in a big way on this worsening problem of patent trolls. As end users of the podcasting technology, the comedy industry will do well to join forces with other interest groups in the ongoing campaign in Washington to pass the Innovation Act. This is where guys like Maron, Carolla, Jimmy Kimmel, Joe Rogan, Chris Hardwick, and Greg Fitzsimmons, plus all the other comedy superstars with a large microphone, who are supporting Maron and Carolla in their anti-patent troll campaign, can help get things done, And this is especially important now that both foot dragging in the Senate and election-year politics are threatening to slow things down in Washington with this bill. It’s time to finish the job by helping to push the bill across the finish line. That’s a smarter and more reliable way to save the podcasting space from further assault by patent trolls. Litigation alone just won’t cut it, even if the patent trolls lose. The law will have to change.

FLAMINGO DOLLARS: Comedy Magicians Mix it Up in Court

Nathan Burton is a pretty successful comedy magician. He is a star headliner at the famous Flamingo hotel casino in Las Vegas and also has appeared on NBC’s The World’s Wildest Magic” as well on America Got Talent. But lately, life has anything but magic for him and his business associates in the world of comedy magic. And now, it is all up to the court to sort the mess out between them: Burton, Mac King, another star comedy magician in Las Vegas and Bill Voelkner, King’s producer.

Here’s what happened: First, Voelkner sues Burton for breach of contract, claiming that he negotiated the deal for Burton’s gigs at Flamingo and that Burton owes him about $173,000 for his work, which he has failed to pay. Voelkner says that amount is his own share of the monies received in ticket sales from Burton’s headlining gigs at the Flamingo, where Burton’s Comedy Magic Show features funny comedy routines, illusions, and dancing show girls. Then Burton files his own counter lawsuit against Voelkner, in which he denied that Voelkner acted as his negotiator for the gigs and accused Voelkner of making false and deceptive claims just so he could unfairly profit from Burton’s earnings.

Burton has been doing his gigs at the Flamingo since April 2008 and Voelkner claims that Burton has only paid him a small fraction of what he has earned since then. Mac King is the headliner at Harrah’s, a sister venue to the Flamingo. So, how will it all end and who is going to win? Well, it is not so easy to untangle these claims but since we are talking about a breach of contract here, a good place to begin is to ask if there was in fact a contract between Burton and Voelkner and if so what the terms of that contract are.

For starters, a contract is quite simply an agreement between two or more people to do something or to refrain from doing something. The agreement is usually an exchange of promises between the two people involved and each promise is the price of the other promise. (This is something lawyers call ‘consideration”). Of course, the agreement could either be written down somewhere or it could be by word of mouth between the parties. As it happens, some agreements are required by a law called the Statute of Frauds to be in writing; in those situations, such agreements will be no good if they are not made in written form. Here, in this lawsuit, it doesn’t look like there was actually a written contract between these two men; but that’s OK, since they don’t have to write it down. Needless to say, it would have made life so much easier for all the parties in this dispute.

So, given that we are most likely dealing with a word-of-mouth situation, here, it means that what was said or done between the parties becomes pretty crucial. By law, for a contract to exist between any two people, both of them must at least have the “intention” to enter into an agreement that they know can be enforced at law. Meaning that agreements reached in a situation where both parties, for instance, are drunk in a barroom or in the bleachers at a ballgame likely won’t be any good because in those situations, they may not have the mental capacity to, in fact, “intend” to make a legally binding agreement.

In our case here, the claim for a breach of contract is based on the idea that Voelkner and Burton had agreed that Voelkner would negotiate the Flamingo gig for Burton in exchange for a share of the ticket monies. Yet, there is a problem here: Burton claims that he never had any “intention” to have Voelkner act as his representative in negotiating the Flamingo deal. If this is true, then the court will probably find that there is no contract between the two of them and so Burton wins.

By the way, the “intention” to make the agreement must be in existence before the job is done, meaning that if Voelkner negotiated the deal for Burton without first telling Burton about it, then too bad for him since he would have offered his services without a contract. In such a case, Burton doesn’t have to pay him because Voelkner would have acted merely as a volunteer or a busybody who did something without being asked. (The law does not make it its business to help busybodies get paid.) In the eyes of the law, Voelkner’s act of negotiating the gig for Burton (without any agreement for him to do so) would be regarded as a “past consideration” which isn’t good enough. What is required for a good contract at law is a “promise-for- a promise” exchanged between the parties before anyone has done anything for anyone.

But there is a situation in which Burton may still be on the hook for some money even though he did not have a contract with Voelkner. This kind of situation would arise where, for instance, it can be shown that at the time Voelkner provided his services to Burton in negotiating the Flamingo gig, Burton knew what Voelkner was doing on his behalf and also knew that Voelkner expected to get paid for his trouble and still went ahead to accept the benefits of Voelkner’s services. In such a case, since there is no contract between the parties, this would not be a breach of contract situation at all and Voelkner will not be paid according to the terms of any contract. Rather Voelkner will be paid the “reasonable value” of his services, in order to prevent what the law calls “unjust enrichment” on the part of Burton.

And there is something else in the case: Burton’s lawsuit makes reference to a statement by Voelkner that he had an understanding with the folks who run Flamingo and its sister venues that no gigs are to scheduled in any of those venues unless they are negotiated by Voelkner himself. Burton also claims that, without any help from Voelkner, he already did have a tentative agreement with “substantive terms” with the folks who ran the Flamingo joint for him to play that venue.

If both claims are true, then Burton may not be sitting so pretty off the hook after all. And again, like the one above, this would not be a breach of contract situation either; it would be something else that won’t be good news for Burton. If, for instance, Burton knew that the folks [Caesar’s Entertainment] who ran the Flamingo and its sister venues already had an agreement with Voelkner to negotiate gigs in those venues only through Voelkner and still proceeded to negotiate his Flamingo gig without the participation of Voelkner, then his actions could make him liable to be sued by Voelkner for wrongful interference with contractual relations.

To be sure, it has to be noted that if this argument is raised in court, it is not clear how it will pan out, considering that Burton has denied that he knew anything about the arrangement between Voelkner and the Caesar’s folks, presumably at the time of Burton’s deal with them for his Flamingo engagement.

In the end, the outcome of this case is rather difficult to predict: Not many details are clear at this point and when the issues are to be sorted out through courtroom litigation, with its ebbs and flows, the odds are never easy to read. Plus, the process leading to a final outcome is often brutal. And the winner doesn’t always feel like a winner. Given all this, the best option for the parties is to explore possible ways of settling the matter out of court and moving forward with the business of making folks laugh.

Standoff at the Golden Globes: The Big Rumble in the Backroom

On January 16, celebrity British comedian Ricky Gervais will host the 68th Annual Golden Globes ceremony with all its usual fanfare and more. Only this time there are such dark clouds gathering on the horizon that the awards ceremony of January 2011 may well be the last time that we’ll see the Globes the way we have known the event for almost two decades now.

Here’s what happened: On November 17, 2010, the Hollywood Foreign Press Association (HFPA), owner and creator of the Globes, sued the show’s producer Dick Clark Productions (DCP) and its parent company Red Zone Capital (RZC) for breach of contract and trademark infringement and sought a court order (injunction) that would stop DCP and Red Zone from acting as though they are still connected with the Globes after January 2011. (One month earlier, in October, DCP, without consulting HFPA, had gone ahead to sign an extension of the broadcast rights to the show with NBC for the period after January 2011 until 2018. As it happens, the agreement between the owner (HFPA) and the producer of the Globes (DCP) expires after this month’s show and they have not signed a new agreement to continue their collaboration. ) DCP claims it acted correctly under its contract and that the owner’s lawsuit has no merit.

Now the big question: Can DCP enter a new agreement with NBC without first getting the OK from HFPA? Well, it depends!

First, under contract law, DCP can make a deal with outsiders like NBC on behalf of HFPA if DCP can be regarded as the “agent” of HFPA. In the real world, their contract does not need to name DCP as HFPA’s agent in order for DCP to be able to act under what is known as “apparent authority” when it deals with outsiders like NBC. The real question here would be whether there were things done over the course of the collaboration between HFPA and DCP that could lead outsiders like NBC to “reasonably” suppose that DCP could act for HFPA to grant extensions of broadcast rights to NBC without NBC actually ever dealing with HFPA.

The situation of apparent authority is even a bigger deal if the contract between HFPA and DCP is silent on how extensions of broadcast rights under the agreement may be made. Of course, the flip side is that if NBC knew as a fact that DCP did not have such authority, then NBC would be on its own. In another context, that would be kind of like someone knowingly buying a stolen car. To be sure, NBC itself had a huge incentive to jump at an extension deal: Last year’s broadcast fetched NBC its largest audience in that time slot in six years for a non-sport show.

However, if it turns out that DCP had no grounds upon which it could act as HFPA’s agent in granting the extension to NBC, HFPA may have a whole bunch of options as it plays offense. The first obvious option is that HFPA could act exactly the way it has just done in suing DCP for breach of contract and to get a court order to stop DCP in its tracks and perhaps banish it from the Globes.
Plus, if they can prove, as their lawsuit claims, that DCP acted in “bad faith” (meaning in this case an improper motive to “steal” the show from the owners), then it can win a lot of money in what is called “punitive damages.”

And as long as HFPA is on war footing, it could also choose to be aggressive and set its sights on other unexpected targets, like NBC. For example, in many states, including California, it could go after both NBC and DCP together in a lawsuit seeking damages against them for civil conspiracy to induce a breach of contract. It seems easier to talk about conspiracy here considering that NBC had been dealing with both parties for many years.

With regard to HFPA’s allegation that DCP scuttled its negotiations with Facebook, the odds of making out an “interference with contract” case with this one are pretty long since HFPA did not yet a valid contract with Facebook at the time of the alleged intrusions by DCP.

In the end, as with all litigations, only the Court will resolve the issue one way or the other between the “owner” and the “producer” of the Globes. But the best chance of the Golden Globes returning after 2011 as we know it, with its light mood and comic quips intact, would be for both parties (who have worked well together for several years) to reach an amicable out-of-court settlement among themselves at close quarters. Otherwise, the cold hands of a legal judgment would force a settlement upon them as though they were a bunch of troublesome strangers needing to be kept miles apart from one another. That would leave us with a different Golden Globes if and when it returns after that.

Conan’s NBC: No laughing matter for a funnyman

On Sunday, January 10, NBC made it official that it will cancel the 10 p.m. “Jay Leno Show” effective February 12, and move Leno over to an 11:35 p.m. time slot. For Conan O’Brien, NBC said it would offer the funnyman from Harvard the chance to move his “Tonight Show” back just a half hour from 11:35 p.m. to 12:05 a.m. to be followed by Jimmy Fallon’s “Late Show.” Before June 2009, Leno hosted the “Tonight Show” at 11:35 p.m.

Looking back now, the Leno-O’Brien shuffle by NBC Universal’s boss Jeff Zucker easily looks “boneheaded” because, with Leno gone, Letterman now rules the ratings at 11:35 p.m. in spite O’Brien’s best efforts. Plus, Leno himself is doing rather poorly at 10.p.m. and NBC languishes in fourth place among the major networks. This is now being called Late Night Crisis 2010. Disaster all around!

Yet, NBC will not get its wish: O’Brien is leaving in a foul mood with an unfriendly dig at NBC which he accuses of making him a scapegoat for its “terrible” prime time ratings. He also claims that starting the “Tonight Show” at 12:05 a.m. the next day amounts to a “destruction” of the show. O’Brien’s bold reaction somehow recalls an earlier bigger drama on the “Tonight Show” when Jack Paar stormed off the show in 1960 to protest alleged censorship from NBC folks.

When the dust settles, O’Brien will leave NBC with millions of dollars in his pocket. But some people have wondered what the situation would be if the funnyman had chosen to stay and fight instead. No easy answers here but there are options all around the table. Speaking of O’Brien’s options, a small oversight by his lawyers may have made all the difference, something that NBC has to be thankful for. And here it is: the language of the agreement did not include that O’Brien’s “Tonight Show” must be held at 11:35 p.m. And NBC has ended up using this oversight as an escape route. Recall that NBC told O’Brien he could carry his show intact over to 12:05 a.m.

But if that loophole didn’t exist, O’Brien’s legs would be stronger in a fight against NBC if he had chosen to stick around and mix it up with them. He could easily seek an injunction from a court to prevent NBC from moving Leno to 11:35 p.m. Plus, he could also request an order of specific performance to make NBC keep its word to leave him on at 11:35 p.m. Not having these options made O’Brien something of a sitting duck as NBC selfishly maneuvered to fix Zucker’s earlier big blunder in moving Leno into the 10 p.m. slot. Some have called this tactic Machiavellian.

To be sure, O’Brien isn’t the only one with options here. His contract with NBC reportedly contains what’s called a negative covenant which could allow NBC to keep him off any rival television networks during the time he was supposed to be working for NBC. Already, Zucker is said to be “threatening to ice him” if he walks away from NBC. All this is important because FOX is reportedly interested in hiring O’Brien to launch Fox’s own rival late night show.

But, aside from Fox’s interest in O’Brien, can NBC really enforce any agreement to keep O’Brien off late night television for even one day? Not likely, under the circumstances.

For starters, NBC has not dealt fairly and in good faith with O’Brien and the law requires a party complaining to come with “clean hands.” Plus, the courts would probably find such an action unreasonable since the law aims to protect both competition in the marketplace and a person’s right to earn a living. So, one can safely predict that if push comes to shove here, NBC will likely suffer the same fate that ABC endured in 1980 when ABC failed in its suit against CBS in trying to stop sportscaster Warner Wolf from jumping ship to CBS.

True, O’Brien has asked us not to “feel sorry” for him and considering all the big money he’s leaving with (about $45 million by some estimates), perhaps we shouldn’t. Yet we cannot help but wonder what could have been had the funnyman been in a good position to really take the fight to NBC.