Hollywood writers suffered a major setback yesterday with news that NBC's The Tonight Show with Jay Leno and Late Night with Conan O'Brien would resume broadcasting new episodes Jan. 2.
Since the strike started seven weeks ago, the union has consistently won the public-relations battle with the Alliance of Motion Picture and Television Producers, the umbrella group representing the major Hollywood studios. But not being able to keep the top-rated late-night shows in reruns could prove to be a very real defeat for the Guild.
While stockpiled episodes of hit series have kept viewers from feeling much prime-time pain from the shutdown in Hollywood, the one area the strike has seriously disrupted is late night.
The resumption of new programming by Leno and O'Brien - along with the expected return of David Letterman and Craig Ferguson on CBS - could weaken the Writers Guild of America's bargaining position in its fight to share in future new media profits. At the very least, it makes it far more difficult to have a united effort when some union members are getting a paycheck and others aren't.
"The return of Leno and O'Brien is a serious development," said University of Maryland media economist Douglas Gomery. "If the Guild members start to break apart, they will be lost. The alliance of major studios will steamroll them."
Rick Ludwin, NBC's chief of late-night programming, has said the Writers Guild has singled out Leno and O'Brien, and held them to a higher standard than previous talk-show hosts.
"It's a little unfair to suggest late-night talk-show hosts can't come back and talk even if they are members of the Writers Guild," he said in a conference call yesterday. "During the 1988 writers' strike, Johnny Carson reluctantly returned to The Tonight Show without his writers after two months."
But while Carson was not a member of the Writers Guild, O'Brien and Leno are.
"Both Jay and Conan have supported their writers during the first two months of this WGA strike and will continue to support them. However, there are hundreds of people who will be able to return to work as a result of Jay's and Conan's decision," said Ludwin, referring to the nonwriting staffers who have been put out of work by the strike.
While the Leno and O'Brien shows will return without writers, The Late Show with David Letterman and the Late Late Show with Craig Ferguson are in negotiations with the Guild to strike a separate deal that would allow them to return with writers.
There is a key difference in the two networks' situations: NBC Universal owns the Leno and O'Brien shows, while Letterman's Worldwide Pants production company owns the two CBS programs. Last week, the alliance of major studios suspended talks; in response, the union initiated a new strategy of pursuing separate deals with individual production companies - especially smaller ones like Letterman's.
The goal of such a strategy is to divide the alliance, according to Norman Samnick, an entertainment-industry attorney with the New York firm of Bryan Cave LLP, whose clients range from the John F. Kennedy Center for the Performing Arts to HBO.
"In almost every negotiation like this, you have one or two companies that fold," said Samnick. "And if you can get enough of them to fold, pretty soon you no longer have an alliance."
But, instead, it now seems that the union is the one facing division within its ranks, with the possibility of some writers working, while others walk the picket line.
There was no immediate comment from the Guild about NBC's late-night announcement.
Debbie Vickers, executive producer of The Tonight Show, said that while she doesn't relish the prospect of going head to head against Letterman without writers, it beats the alternative of staying off the air.
"In a perfect world, the strike is over, the writers are back and we're all up and going again on a level playing field," Vickers says. "But it's not a perfect world right now."
Neither Vickers nor Jeff Ross, executive producer of Late Night with Conan O'Brien, would speculate on what their writer-less shows would look like.
"It's going to be hard [doing the show without writers], but we just have to figure it out," Ross said.
With the return of Leno and O'Brien, many Hollywood performers will face the issue of crossing a picket line to court publicity for their latest projects.
Vickers acknowledged that some performers wouldn't appear on the shows, but she said hard-line attitudes have softened in recent weeks.
"People are warming to the idea" of being on the shows, she said.
In their comments, Leno and O'Brien pointed to the length of the strike as key to their decisions.
"Now that the talks have broken down and there are no further negotiations scheduled, I feel it's my responsibility to get my 100 nonwriting staff, which were laid off, back to work," Leno said. "We fully support our writers, and I think they understand my decision."
"If my show were entirely scripted I would have no choice," said O'Brien. "But the truth is that shows like mine are hybrids, with both written and nonwritten content. An unwritten version of Late Night, though not desirable, is possible - and no one has to be fired."
Simply getting the Leno and O'Brien shows back on the air will be a victory for the networks, with the shows arriving, as they will, on the eve of the presidential primary season - a time of heightened interest in the kind of satiric political commentary that late-night comedians offer.
It will then be that much harder for Jon Stewart and Stephen Colbert, the deans of political satire, to stay in reruns with their Comedy Central cable shows once Leno and O'Brien are back on the air.
"On its face, this does not look good for the writers," said Samnick. "If you can produce these two shows without writers, other producers start to think, 'Hey, maybe, I don't need the writers, either, to be back on the air.' "