Free Britney (and other legal lessons from the headlines)

February 21, 2022
A-list celebs, messy legal battles, and big stakes: Richmond Law profs look at four recent high-profile court cases — and the legal lessons they offer.
By Amy Downey

On a Friday in November, Taylor Swift fans squealed at the release of her album Red (Taylor’s Version). “Swifties” fell in love all over again with this remake of her 2012 album, featuring extended versions of her original songs, plus new bonus tracks. Even sweeter? Unlike her first six studio albums, Swift owns the rights to this one.

That same day, singer Britney Spears, 39, finally got out of a longtime conservatorship overseen by her father. For nearly 14 years, he controlled all of Spears’ personal and business affairs — to the extent that she wasn’t even allowed to change the color of her kitchen cabinets. Earlier in the year, a judge ruled on the future of actress Sofía Vergara’s frozen embryos; before that, quarterback Colin Kaepernick settled a collusion case with the NFL related to his national anthem protests.

With so much legal wrangling going on, we asked four Richmond Law professors to break down the biggest takeaways from each case.

Britney vs. Jamie Spears

How it started: When singer and songwriter Britney Spears suffered a mental health breakdown at the age of 25 in 2007, her father, Jamie, petitioned for an emergency temporary conservatorship of her estate. The Los Angeles Superior Court approved him to be in charge of her affairs (and her $60 million fortune) and, eight months later, ruled his position permanent. But, according to Britney, the legal arrangement was abusive and exploitative: She was forced to work, receiving only a modest weekly allowance in return, and endured oppressive restrictions on her medical care and personal life, from being forced to take lithium to having her bedroom secretly surveilled.


An illustrated portrait of Britney Spears with her arms up over her head in a dance pose, breaking a pair of handcuffs.

How it's going: “On the one hand, he’s claiming that she can’t take care of herself,” said professor of law Allison Tait, explaining that conservatorships are typically reserved for an incapacitated person. (Tait teaches trusts, estates, and family law, among other topics.) “But, on the other hand, she’s perfectly fine to have a Las Vegas residency, go on tour, and put out an album. It looks a little suspect to be claiming both things at the same time.” Instead, says Tait, such discrepancies suggest that Spears was being manipulated as a cultural product for financial gain.

Despite objections and petitions, her father remained in control — earning a salary plus a cut of profits — for nearly 14 years. Britney was finally heard in 2021: At a hearing in June, she testified in detail about the financial abuse and physical control exerted over her, and in November, the conservatorship was terminated.


The takeaway: All decisions, financial and otherwise, were supposed to be in Spears’ best interest — conservatorships are put in place to protect the conservatee, after all — but the conservator’s decisions were far from it. Tait adds that the definition of “good faith” has received a lot of attention in this case: “The fact that the father was basically living off her and controlling her should make us a little nervous that this was a tolerated legal situation,” she said. “It’s highly unusual for someone her age to have a conservator. You have to be a little skeptical when there’s this much money at stake.”

The conservatorship also brings up questions about fundamental freedoms that women have with regard to their bodies. Spears wanted to get married and have children but testified that she wasn’t allowed to have a birth control device removed. Says Tait: “That a conservator could, in fact, mandate forms of birth control and make these reproductive decisions for somebody else — and that a court would uphold that — is pretty shocking in terms of limiting somebody’s rights.”

You have to be a little skeptical when there's this much money at stake.

Sofía Vergara vs. Nick Loeb

How it started: When Sofía Vergara, star of TV’s Modern Family, and then-fiance Nick Loeb struggled with infertility, they created embryos through in vitro fertilization. The embryos were ultimately unsuccessful, so two additional embryos were created in 2013, and the couple froze them — only to break up the following year. Shortly after, Loeb filed multiple lawsuits in an effort to gain custody of the embryos. He later moved the case to Louisiana, where unique state laws protect the constitutional rights of the unborn, and filed a “right-to-live” lawsuit on behalf of the embryos, whom he named Emma and Isabella. (That case was eventually dismissed with prejudice.)


An illustrated portrait of Sofia Vergara, wearing a protective glove, holding tongs, and playing a tug of war over an IVF vial with another person who is cropped out of the image, except for their hand and arm, also clad in a blue glove, holding tongs.

How it's going: Law professor Meredith Harbach, whose expertise includes family law and reproductive justice, explains that while Loeb is making a custody argument, Vergara says this is actually about enforcing a contractual agreement. The couple signed directives at the Los Angeles ART Reproductive Center — twice, one for each round of IVF — stating that written consent from each partner is required in order to transfer the embryos for uterine implant. The Los Angeles courts sided with Vergara and in March granted a permanent injunction, which bans Loeb from using the embryos without Vergara’s permission. Said Harbach: “This ruling sends a message that you should pay attention to what you sign.”


The takeaway: Vergara’s case was decided in the context of a larger set of cases that involve custody questions over frozen embryos — cases that are showing up with increasing frequency due to the number of couples using assisted reproductive technology.

“This has been, for a while, an area that we would characterize as the Wild West of family law,” said Harbach, explaining that advances in technology have led to embryos that historically wouldn’t have been accorded personhood status. This, in turn, raises larger debates about reproductive rights — particularly between anti-abortion and abortion rights advocates.

There simply isn’t a uniform way of approaching these disagreements: Some courts rely on previous contracts, as in Vergara’s case, while other courts may require an agreement between parties in order to move forward. Either way, the case underscores the importance of being intentional when discussing IVF — and of signing paperwork that represents your wishes.

“There are very real and significant interests on behalf of partners who have different opinions on what to do with the frozen embryos,” Harbach said. “Have these conversations with your potential co-parent before you enter into any agreement.”

This ruling sends a message that you should pay attention to what you sign.

Colin Kaepernick vs. The NFL

How it started: Throughout the 2016 NFL season, San Francisco 49er Colin Kaepernick knelt during the national anthem before each game to protest police brutality and racial inequality. The following year, 2017, the quarterback became a free agent but went unsigned. Kaepernick, believing that teams were retaliating against him, filed a collusion grievance against the league. Because NFL players are unionized, Kaepernick filed the grievance under the collective bargaining agreement.

“He had an avenue open to him that most employees in America don’t have,” said law professor and employment law expert Steve Allred, explaining that only a small percentage of the private sector workforce is covered by a CBA.


An illustrated portrait of Colin Kaepernick, kneeling, in uniform.

How it's going: Kaepernick, who filed his grievance alongside teammate Eric Reid, settled with the NFL in 2019, reportedly for less than $10 million. While Reid went on to play for the Carolina Panthers, Kaepernick never returned to football. Meanwhile, the anthem is still a hot-button issue: The NFL implemented a policy in 2018 requiring personnel to stand on the field (and protest only inside the locker room). In response, the players’ union filed a grievance claiming it infringes on players’ rights.

“Employees want to have a right to be heard or a right to individual expression,” Allred said. “The problem, under the law, is that people have varying degrees of latitude to do that.”


The takeaway: It’s worth noting, says Allred, that the courts are constantly trying to strike a balance between two things: the important right of employees to have a voice versus the disruptive effect it has on the workplace and business. Take, for example, how divided some NFL locker rooms grew on the matter or the fallout in television ratings during the 2017 season. Said Allred: “That’s the common thread that runs through all of this — the countervailing interests that the courts are trying to recognize and deal with.”

But what we can most learn from this case, according to Allred, has actually nothing to do with the law. “The biggest takeaway is the willingness of professional athletes to present themselves as something other than professional athletes,” he said. “They are people with sincerely held beliefs and feel that they shouldn’t be constrained in expressing those beliefs as a condition of their employment.” But taking this action, and expressing views on matters of current social justice or political importance, doesn’t come without risks — it can even jeopardize careers.

Employees want to have a right to be heard or a right to individual expression. The problem, under the law, is that people have varying degrees of latitude.

Taylor Swift vs. Record Labels

How it started: When Taylor Swift was 14 years old, she was discovered in Nashville by music executive Scott Borchetta. She signed with his label, Big Machine Records, in 2006; over time, she delivered six albums and solidified her spot in music history. When that contract expired in 2018, Swift signed a new deal with Universal Music Group. The following year, Borchetta sold his label (including Swift’s catalog) to music manager and entrepreneur Scooter Braun for $300 million. And, 17 months after that acquisition, Braun sold Swift’s master recordings to Shamrock Holdings for at least the same amount — likely much more. Without the chance to buy back her masters, Swift declared her intent to rerecord the music.


An illustrated portrait of Taylor Swift, singing into a microphone. Her voice is made visual, and it reads "Taylor's Version" in the swirling shapes.

How it's going: “Swift has very cleverly figured out a way to essentially reclaim her original recordings without having to go through the label that got them from her in the first place,” said law professor Jim Gibson, an intellectual property expert. Just last year, Swift was allowed to start rerecording her first five albums from the contract. She didn’t waste time: Fearless (Taylor’s Version) and Red (Taylor’s Version) both dropped in 2021 — and broke all sorts of streaming records.

Gibson notes that all of this attention to her classics could actually increase the sales of her old versions — benefiting Braun and Shamrock Holdings — at least in the beginning. But, over time, it’ll be her new versions that forge her legacy, not just on the radio, but in movies, television commercials, and beyond.


The takeaway: There’s long been a power imbalance in the music industry, explains Gibson, where new artists are subject to unfair contract deals from record labels — including someone else owning the copyrights to the songs.

“That’s obviously a complicating factor when the artist later becomes powerful, as Taylor Swift has, and has the ability to assert ownership of her own music,” said Gibson. “Some of her earliest songs and biggest hits are water under the bridge, and it’s difficult for her to get them back.” Another factor here? Music copyright is complicated. “It’s a very intricate area of the law, with lots of ins and outs, some of which Taylor Swift is actually taking advantage of in this situation.”

This makes it important to have legal details ironed out within the band as well. After Soundgarden lead singer Chris Cornell died in 2017, several lawsuits ensued between the living members of the band and Cornell’s widow, including over rights to unreleased recordings. Although some disputes are still ongoing, the parties did settle one issue — control of the band’s social media accounts — in June, giving access back to Soundgarden.

“Be really careful about the ownership of things that we don’t tend to think of as assets,” said Gibson. “That’s a lesson that goes beyond the music industry.”

Amy Downey is a freelance writer based in Allentown, Pennsylvania.