Oher ‘Blind Side’ Royalty Bid Is Long Shot in Guardianship Fight

Former NFL star Michael Oher faces an uphill battle to access substantial “The Blind Side” movie royalties even if he successfully ends his allegedly deceptive and exploitative 19-year conservatorship.

Oher this week accused Sean and Leigh Anne Tuohy—who took him into their house in the early 2000s in what became the basis for the award-winning movie—of tricking him into signing away his right to contract or make medical decisions. His Aug. 14 petition to end the conservatorship said the Memphis couple used those rights to cut Oher out of millions of dollars by signing a movie rights deal in his name.

The Tuohys have publicly pushed back against the allegations, saying they love Oher as a son, did not exploit him or cut him out of the movie deal, and made substantially less money from it than his petition alleged. They also accused him of a “shakedown effort” in which he demanded $15 million not to go public with his story.

The conflict, largely centered over the 2009 hit movie, hinges on a multidisciplinary mix of legal questions including the right of publicity—which bars people from commercially using someone else’s name, image or likeness—as well as the loosely regulated guardianship industry and conservatorship’s severe restriction of rights.

Intellectual property law professionals questioned how much a movie studio would have paid Oher or the Tuohys for his story because they have no inherent rights to facts nor the eponymous Michael Lewis book on which the movie is based. The tens of thousands of dollars the Tuohys said they received and shared with Oher is more in line with standard “life rights” deals, said IP and transactional law professor Jorge Contreras of the University of Utah.

“A ‘life story right’ doesn’t really exist,” said Contreras, who has written about Hollywood life rights contracts, which are generally more about cooperation with movie studios. He called the figures Oher cited “way above what I’d consider the industry norm to be,” adding that “people overestimate what studios will pay for life story rights. If you get six figures you’re doing pretty well.”

But while Oher faces roadblocks in seeking to recoup earnings from the film, he might have a clearer path to challenging the Tuohy’s legal arrangement. The 2004 order granting conservatorship over Oher appears to directly contradict Tennessee law by saying there’s no evidence of a disability—which appears to be a prerequisite in the state.

“When you go to file for a conservatorship, you’re saying this person can’t take care of himself,” inequality and disability law professor Jasmine E. Harris of the University of Pennsylvania said, adding that the process “could never be confused with adoption” given its significance. “Conservatorship is not any old process. It’s a specific proceeding that in many cases results in civil death.”

Attorneys for Oher and the Tuohys didn’t respond to requests for comment.

Blindsided

Oher grew up largely on the streets of Memphis as a ward of the state. A father of a friend helped him enroll in Briarcrest Christian School in 2002 on the outskirts of the city, where he excelled in sports and caught the attention of major college football programs.

He occasionally stayed with the Tuohys, who had two kids at his school, before the family invited him to live with them permanently for his senior year months after he turned 18. In August of his senior year, Oher alleged, they pressed him to sign the conservatorship request without relaying that he was singing over his right to contract for himself.

The Tuohys, boosters of University of Mississippi athletics, have said he knew about the conservatorship, which they executed to show the NCAA their generosity was to an effective family member, not illicit benefits to induce a coveted recruit to choose to play at Ole Miss.

The Tuohys also allegedly told Oher they couldn’t technically adopt him because he was an adult, his petition said. But Tennessee law says 18-year-olds can be adopted, requiring “only the sworn, written consent of the person sought to be adopted.”

The 2004 conservatorship order said it “appears” that “Oher has no known physical or psychological disabilities.” Tennessee law requires “clear and convincing” documentation of a disability or incapacity for such orders, and a state appeals court in 2003 said the existence of disability or incapacity is “the threshold question in every conservatorship proceeding.”

Harris also noted that most states—including Tennessee—require an annual financial accounting for their ward, while imposing a fiduciary responsibility to act in the ward’s best interests. No filings of any kind were made in Oher’s case between the 2004 order and his Aug. 14 petition, according to Oher and court documents.

If the Tuohys didn’t meet the requirements of their conservatorship or if Oher signed off on it under undue influence, contract law might find deals signed in Oher’s name unenforceable, sports and IP law professor John T. Wolohan of Syracuse University said. But it’s unclear just how much may be at stake.

No ‘Life Story Right’

As Oher rose in prominence at Ole Miss, Lewis wrote “The Blind Side.” The 2006 book highlighted Oher to tell a story about the increasing importance of the left tackle position. Oher’s petition said that on April 20, 2007, the Tuohys signed a movie rights deal that earned them $225,000 plus $2.5% of “defined net proceeds” from the film that grossed $330 million.

The movie deal was also allegedly amended in 2010 without Oher’s knowledge, leading to a $200,000 donation to Leigh Anne’s Tuohy’s foundation in her husband’s name, the petition said. Oher alleged that the attorney who was purportedly his agent on the original deal was—without Oher’s knowledge—a Tuohy family friend and the same attorney who filed for the conservatorship.

Lewis defended the Tuohys in an interview with the Washington Post, saying they received half of the $250,000 20th Century Fox paid Lewis. Lewis said his half was about $70,000 after taxes. He also said he and the family made about $350,000 each from the movie’s profits after agent fees and taxes, and that Oher at some point began declining his share of the royalties from the Tuohys.

No actual contracts from the film have been made public. But a studio technically wouldn’t have needed Oher’s or the Touhy’s permission to make “The Blind Side” based on publicly available information or—once it bought the rights—Lewis’ book. Life rights agreements are often cooperation agreements where the rights-sellers agree to help provide materials, Contreras said.

The agreements also generally release studios from liability in defamation or right of publicity suits, he said—not necessarily because they’d lose such a lawsuit. Contreras also noted that Oher is litigating against the Tuohys rather than Fox.

“If you have any scrap of a case, even the tiniest smidgen, you’re suing Fox,” he said. “You’re not suing your stepdad.”

Oher’s petition goes beyond the movie, claiming the Tuohys have separately profited from his name and likeness.

It’s possible Oher has right-of-publicity claims outside of the movie deal, IP attorney Jennifer A. Van Kirk of Lewis Roca Rothgerber Christie LLP said. But he couldn’t stop the Tuohys from stating facts or describing their roles in his life; any case would depend how they used his name in promoting themselves, she said.

“If they’d used his name in a commercial way, outside of a storytelling way like in the movie,” Van Kirk said, “that would be subject to the right of publicity.”