Stu Freen is a JD candidate at Osgoode Hall Law School.

As details of Conan O’Brien’s severance deal with NBC leak out, it seems that at least one thing won’t be travelling with Conan to wherever he ends up: His signature characters and comedy bits. NBC has reportedly staked out the IP rights in classic Late Night recurring characters such as Conando, the Masturbating Bear, and Clutch Cargo Arnold as part of Conan’s $40 million deal to leave the Tonight Show.

While lawyers from both sides have been hush on the issue, sources close to the negotiations told the Hollywood Reporter that NBC will retain the rights to all the characters and gags created for Late Night and the Tonight Show. The future of perhaps the most popular Late Night character, Triumph the Insult Comic Dog, is a little less certain since he was actually created prior to his first appearance on the Late Show by writer and comedian Robert Smigel. My personal favourite bit, the Walker Texas Ranger Lever, sadly will almost certainly be gone for good since it was premised entirely on the fact that NBC had access to royalty-free Walker clips.

This aspect of the Conan deal has struck entertainment lawyers as unusual since front-end contracts for comedy shows usually assign IP rights to creators. Although by default copyright goes to employers, TV deals are almost entirely contractual and as such the assignment of IP is governed by the terms. For instance, Law.com points out that David Letterman now owns all of his skits and characters and therefore wouldn’t face this issue if he were to ever leave CBS. However, Letterman too had to change the name of some of his bits when he made a similar move from NBC to CBS in 1993, indicating that he might not have always wielded such bargaining power with network executives.

While it is extremely unlikely that NBC will actually try to use any of Conan’s characters without him, the move is seen as a ploy to keep Conan’s next show from catching on. NBC hopes that without his familiar gags Conan will have a hard time attracting some of his old fans. However, Letterman’s past experience indicates that Conan will probably just be able to tweak the names and content of his skits a little bit in order to recycle them.

Hollywood document-trolling website the Smoking Gun also reported (perhaps prematurely) that the theme music to various Late Night and Tonight Show segments may be safe since the copyright was registered by band members Max Weinberg and Jimmy Vivino. However, mere registration of a copyright does not necessarily imply ownership and as such should be taken with a large grain of salt.

On a related note, the NBC-Conan deal purportedly includes a blackout period where Conan cannot appear on TV during returning host Jay Leno’s first shows back at the Tonight Show. Perhaps wisely, NBC wanted to avoid a late night mud-slinging war like what was going on throughout Conan’s last week on the air. Under the deal Conan will not be able to appear on rival talk shows like the Late Show or the Daily Show with John Stewart to trash Leno and NBC.

Posted in Contracts, Copyright, IP, Ownership