#FreeBritney But “Dats Jus Me Tho”: Conservatorships Spawn Danger to Trademarks and Likeness
On November 12, 2021, Britney Spears’s nearly 14-year conservatorship was officially dissolved. [1] The conservatorship instituted at the behest of James P. Spears, Spears’ father, initially granted him temporary authority over Spears’ life and finances due to alleged public mental health struggles and alleged substance abuse.[2] However, the conservatorship’s temporary nature turned perpetual fast.[3]
Since its inception, the conservatorship governed the day-to-day operation and business decisions of Britney Spears.[4] It vetted friends, visitors, and boyfriends, chose her professional jobs, and logged her every purchase.[5] According to Spears, she was forced to work against her will and “truly believe[d] this conservatorship [was] abusive.”[6].
Fast forward to 2023, Michael Oher, a first-round draft pick, retired NFL star, and the primary subject of the Oscar-winning 2009 film The Blind Side, was released from his own 2004 conservatorship.[7] Until February 2023, Oher was under the impression that he was the adopted son of Sean and Leigh Anne Tuohy. Instead, Oher found he was their conservatee—never adopted nor made part of the Tuhoy family in any way.[8]. Unlike the Blind Side’s premise, the Tuohys presented Oher with the conservatorship and indicated that signing it would count as his adoption.[9]. This action tricked Oher into surrendering his sole right to his name and forfeiting his power to manage his financial affairs by ceding his interest to the Tuhoys (to make deals in his name) despite being a legal adult with no known physical or psychological disabilities. [10]
On March 3, 1999, Spears filed her namesake as a trademark for entertainment services such as musical performances and audio recording films.[11] In subsequent years, marks were added for jewelry, apparel, advertising, merchandise, and other multimedia material.[12] Today, they are all owned by Baby One More Mark, LLC., a Delaware limited liability company assigned the trademarks by Spears’ named co-conservators amid her conservatorship.[13] Per Delaware laws, the ownership is not disclosed.
Still, it is worth noting that holding companies can own trademark registrations and assignments.[14] This alone is insufficient to make representations regarding control over Spears’ trademark rights.[15] But, the registration owner must match the entity controlling the use of the underlying trademark through a license.[16] Thus, while Baby One More Mark, LLC remains the listed owner, Spears likely owns her name.
Similarly, in April 2017, Oher filed the mark “Dats Jus Me Tho” for clothing items such as athletic wear, ball caps, and footwear, a trademark he now owns.[17] Trademarks are all about association. The U.S. Trademark Act defines a trademark as “a word, phrase, symbol, or design, or a combination thereof” consumers distinguish and perceive as an indication of source.[18] Words, slogans, color schemes, smells, sounds, and any other unique symbol—“marking” its distinctiveness in the minds of consumers—can be registered.[19] In 2024, personal brand and influence are currency. Celebrity image, publicity, and reputation propagate marketable goods that allow for mark ownership and exclusive use to turn profits. However, in cases like Oher and Spears, such utility goes unrealized.
Like Spears was exploited into relinquishing control over her personhood, Oher was beguiled into entrusting the Tuhoys with his finances.[20] For them, trademark registration does not serve their interest, as the benefit quickly morphs into a burden. Usually, trademark registrants establish ownership of the mark and the right to exclusive use of the mark in commerce, which can offer registrants protection and enforcement rights. But, under a conservatorship, where court-appointed conservators manage affairs and make decisions for persons considered incapacitated due to their mental capacity, age, or physical disability, such safeguards do not work.[21]
Conservatorships become the loophole. Notably, conservators are paid for their services through the conservatee’s assets, and courts decide whether these payments are reasonable.[22] So subsequent control over the conservatee’s brand and likeness further serves the conservator, not the talent, as demonstrated here.[23]
While trademarks owned by celebrities can amplify their image and profits in turn, celebrities should guard against bad actors seeking to prey on their name as well.[24]
Footnotes
