Don’t do that again, Jay.
That was the official message from the WGA to Jay Leno — you can’t write jokes for yourself without breaking the guild’s strike rules because NBC is a struck company. The Peacock fired back by insisting that the guild’s rules are illegal.
The moves came Thursday afternoon after Leno delivered a self-written monologue in his return to the air Wednesday night. “The Tonight Show” host, who initially made an ostentatious display of supporting the writers, delivered a scripted assortment of opening jokes and insisted he was following WGA guidelines.
“I write jokes and wake my wife up in the middle of the night and say, ‘Honey, is this funny?’ So if this monologue doesn’t work, it’s my wife’s fault,” Leno said during the opening. “We are not using outside guys. We are following the guild thing. We can write for ourselves.”
The guild, however, issued its own statement Thursday: “A discussion took place today between Jay Leno and the Writers Guild to clarify to him that writing for ‘The Tonight Show’ constitutes a violation of the guild’s strike rules.”
Even one source at another latenight program expressed surprise at how unequivocally Leno had rejected the guild’s contention that performers who double as guild members are prohibited from writing material that is “customarily written by striking writers.”
NBC delivered an explanation on Leno’s behalf, saying in a statement, “The WGA agreement permits Jay Leno to write his own monologue. The WGA is not permitted to implement rules that conflict with the terms of the collective bargaining agreement between the studios and the WGA.”
Yet given that the previous contract expired when the WGA went on strike on Nov. 5, it’s not clear what that means. Although the current contract has lapsed, NBC’s position is that under federal labor law, the terms of the previous agreement hold during a strike, and that the guild has no legal foundation to insist that Leno not perform material he has written for himself.
Moreover, the network contends he’s allowed to do so under the American Federation of Television & Radio Artists agreement pertaining to the latenight shows. But in response, WGA spokesman Neal Sacharow said the Peacock’s all wet.
“Our position is that the strike rules do not pose a conflict,” he added. “Because Jay Leno has always been employed as a writer on the show, the AFTRA exception does not apply to him.”
Leno was expected to deliver another monologue at the top of Thursday night’s show. It’s not clear whether the WGA will pursue some sort of punitive action against Leno, if only to dissuade other performers from using the same approach and rationale.
Both NBC’s Conan O’Brien and ABC’s Jimmy Kimmel, the hosts of the other two struck latenight shows, clearly avoided performing scripted material, skipping a conventional monologue. O’Brien indulged in bits reminiscent of David Letterman’s “network time-killers” during the 1988 strike — spinning his wedding ring, for example — while Kimmel ran clips from earlier shows that, he noted, would result in residuals for the writers.
An NBC insider said that Leno met with WGA West president Patric Verrone and members of the “Tonight Show” writing staff on Monday, at which time Leno articulated his intent to proceed with a self-generated monologue.
However, the guild had issued a reminder to the returning shows articulating its stance that guild members were not allowed to write for themselves.
The situation is awkward given that Leno had been an outspoken supporter of the guild prior to his return.
The guild’s strike rules, issued several weeks before the scribes walked out, are unequivocal.
“As soon as a strike is called, you must immediately stop writing for any and all struck companies,” the WGA rules say. “You may not continue to write or complete writing started before the strike for a struck company. You may not start writing on a new project during a strike. You may not perform writing services even if you work at home or at your own office rather than at the company’s premises.”
Under the strike rules, Leno could be punished via expulsion, suspension, fines and censure — although a hardline response could backfire in terms of generating sympathy for Leno.
Leno’s situation differs considerably from that of David Letterman and Craig Ferguson, who returned to work Wednesday under an interim deal that allows them to perform written material. By contrast, Leno and O’Brien came back without writers and with WGA pickets stationed outside the network’s Rockefeller Plaza and Burbank HQs.
The picketers returned Thursday in both locations. About 100 pickets were on the line outside NBC Burbank at three locations while a small group set up outside NBC during the taping of O’Brien’s show as the temperature was about 20 degrees.
WGA East spokeswoman Sherry Goldman said it was the coldest day yet for picketing in Gotham. “It’s absolutely bone-chilling,” she added.
Picketing’s been limited this week to NBC as a way of drawing attention to the net’s role as an AMPTP member in the stalled negotiations, which broke down Dec. 7. Regular picketing will resume Monday at the major studio lots in the Los Angeles area, although the WGA’s decided to call off picketing at Sony.
In its first night back, NBC’s latenight leader “The Tonight Show” averaged 7.2 million viewers, according to preliminary Nielsen estimates — a season high for the show and the best for Leno on a Wednesday in about two years. And over at CBS, “Late Show With David Letterman” drew 5.5 million viewers, also a season high. Both shows were up about 40% over their previous season average.