Why “Kidfluencers” Deserve Monetary Protections Like Child Actors

by Haley Dominique, Associate Member, University of Cincinnati Law Review Vol. 91

I. Introduction

Maia Knight—a popular single mother on TikTok—posted a video on September 22, 2022, with her two toddlers.¹ Knight’s video received over four million views and one million likes, with this number likely growing with every passing day.² In the age of social media, the overexposure and exploitation of children by their parents has become a booming problem.³ Child social media stars have little protection due to the fact that their parents or guardians are typically running the accounts, and there are no privacy law violations when parents or guardians share their children on social media.⁴ The issue is not only one of privacy, but of fair compensation. Child actors are protected financially by Coogan Laws, but child social media stars are not guaranteed a single cent of the revenue for the content they helped create.⁵ This article will discuss the importance of protecting these child social media stars financially. Section II will provide background on the rise of social media content creation involving children and Coogan Laws. Section III will discuss options to financially protect these children. Finally, Section IV will conclude by stating how history will repeat itself if laws are not updated to protect child social media stars.

II. Background

The start of the COVID-19 pandemic in March 2020 significantly increased the use of social media by the average individual in the United States.⁶ Even before the pandemic, social media was a staple in everyday life.⁷ On the surface, a parent posting their own child on the internet does not seem exploitative. However, the child influencer realm is an area that can become extremely dangerous for the child in front of the camera, especially due to the increased use of social media within the past few years.⁸

A. The Rise of the “Kidfluencer”

“Kidfluencers” are children who have large social media followings with accounts ran by their parent or guardian.⁹ Many users of social media adore and obsess over these children.¹⁰ For example, the TikTok video by Knight has comments from viewers that state the following: “This is my favorite video ever”; “Y’all are always welcome to come visit our farm to let the girls have fun with our animals. Not sure how much you want to come to Missouri though”; and “Get out. Her laugh is the absolute best! Also when is the goosh goosh apparel coming out?”.¹¹ Complete strangers follow along in the lives of these Kidfluencers, obsess over them, invite them over like they are friends, and promote the monetization off the children.¹² The practice of a parent posting their child on social media seems harmless and fun, but many of the comments cross an uncomfortable boundary.¹³ Further, more difficulties and controversies arise when Kidfluencers and the content they create are the main source of income for their parents or guardians.¹⁴ In particular, these children are subject to unregulated labor and no guarantee that they will gain access to the compensation from the advertisement and sponsorship posts that are derived from the content of the social media account.¹⁵

B. Coogan Laws

Federal child labor laws generally prohibit the employment of minors under fourteen years old in nonagricultural fields, restrict hours available to work for minors under sixteen, and prohibit hazardous fields from employing eighteen-year-olds.¹⁶ Unfortunately, the entertainment industry is exempt from these laws, and the protections––or lack thereof––are delegated to states.¹⁷ The fight for protections regarding child actors gained traction when Jackie Coogan realized he would not see a cent of his earnings from his child acting jobs due to his mother and stepfather’s mismanagement of his earnings, and decided to take action.¹⁸

Coogan was a popular child actor in the 1920s.¹⁹ When Coogan turned twenty-one and his father died, he was left with none of the earnings he made when he was a child actor.²⁰ Under California law at the time, the earnings that a child actor made belonged to the parent or guardian.²¹ Coogan sued his mother and manager for the rest of his earnings that remained, and in 1939, the first Coogan Law was put in effect in California. The Coogan Law in California states that at least 15% of the gross earnings from a child actor must be put in a “Coogan” account—a special trust fund account that they will gain access to at the age of legal maturity.²² The law in California has transformed throughout the years and has become a true safeguard for child actors.²³ The 15% must come from the gross income, not net income, and the 15% in the account is legally recognized as the child’s property, not their parent or guardian’s.²⁴ There are currently five states that have laws like the Coogan Law in California: California, New York, Illinois, Louisiana, and New Mexico.²⁵

III. Discussion

Lawmakers in the past have faced challenges amending Coogan Laws to include Kidfluencers, particularly in California.²⁶ In 2018, California failed to extend its law to include Kidfluencers.²⁷ The area is sensitive, considering governments at all levels are reluctant to cross this boundary, and typically allow parents to raise their children as the parents see fit due to the Supreme Court decisions in Pierce v. Society of Sisters and Meyer v. State of Nebraska.²⁸ In Pierce, the Supreme Court ruled that requiring children to attend public schools was unconstitutional.²⁹ In Meyer, the Supreme Court stated that “it is the natural duty of the parent to give his children education suitable to their station in life.”³⁰ Both of these cases combined create this idea that in the United States, the government defers to the parents and allows them to parent as they see fit.

However, since the federal government exempted the entertainment industry from child labor laws, states have a responsibility to protect these children. Their responsibility to protect these children is valid because although caselaw like Pierce and Meyer give parents this general leeway to raise their children as they see fit, the Supreme Court found an exception to this general notion.³¹ In Prince v. Commonwealth of Massachusetts, the Supreme Court found that although the State should generally not concern itself in the realm of parenting, the Court ultimately held that parental authority is not an absolute.³² Parental authority can be restricted by the government when there is an interest in the child’s welfare relating to school attendance, regulating or prohibiting child labor, and other ways not explicitly mentioned by the Court.³³ Because of this rule in Prince, states can and should employ safeguards for child actors in all states, and incorporate these Coogan Laws to include Kidfluencers.

Kidfluencers deserve the same protections as child actors, and that includes requiring a trust fund account with at least 15% of the earnings derived from a social media content in which the child plays a significant role.³⁴ The technicalities and what constitutes as “a significant role” will challenge lawmakers when crafting a solution to this problem that Kidfluencers face. However, this idea of “a significant role” could include the child having a strong presence in the content. For example, if a parent’s TikTok account has ten videos—and five of those videos include the child—the child plays a significant role in the content and deserves a portion of the compensation that directly comes from the sponsorships, advertisements, and other brand deals on the social media account. Every state in the United States should take it upon itself to do the following: adopt Coogan Laws like those already in place in California, New York, Illinois, Louisiana, and New Mexico and include Kidfluencers in the new or amended laws.³⁵ States must act now in order to protect these children who are exploited every day on the internet by their parents without any guarantee of financial compensation.

IV. Conclusion

Fighting to protect these children will be an uphill battle, but the need to protect them is apparent when people realize there is no guarantee these children will see any compensation for the content they help create.³⁶ As seen in California, updating Coogan Laws to include Kidfluencers is challenging due to this boundary that lawmakers are reluctant to cross—stepping in and regulating this area that a parent typically has control over—parenting as parents see fit.³⁷ However, as seen in Prince, there is an exception that states should recognize and develop for labor specific laws that should include Kidfluencers. If states do not take strides to protect these children anytime within the future, states will see history repeating itself with cases that have similar facts to Jackie Coogan’s situation within the coming years.

Cover Photo by Solen Feyissa on Unsplash

Haley C. Dominique

Haley Dominique received her bachelor's degree in Business Administration (2020) and a Graduate Certificate in Public Administration (2021) from Ball State University. She is interested in legal issues pertaining to mental health, economic development, sports, and social media.

References

1
Maia Knight (@maiaknight), TikTok (Sept. 22, 2022), https://www.tiktok.com/@maiaknight/video/7146369955028553006?_t=8W3vskm5Ri2&_r=1 [https://perma.cc/6GZF-X276].
2
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3
Madeline Holcombe, What Happens When Parents Abuse and Exploit Children for Internet Fame?, CNN (Mar. 22, 2019, 6:05 AM), https://www.cnn.com/2019/03/22/us/hobson-parents-youtube-abuse-claims [https://perma.cc/QQ27-T4NF].
4
See 16 C.F.R. Pt. 312 (2022). Children’s Online Privacy Protection Rule (“COPPA”) does not protect children and their privacy rights when a parent or guardian is posting the information.
5
Melody Burke, New Child Labor Laws Needed to Protect Child Influencers, OnLabor (Apr. 27, 2022), https://onlabor.org/new-child-labor-laws-needed-to-protect-child-influencers/ [https://perma.cc/8Y4N-PUN7].
6
S. Dixon, Social Media Use During COVID-19 Worldwide – Statistics & Facts, Statistica (Feb. 8, 2022), https://www.statista.com/topics/7863/social-media-use-during-coronavirus-covid-19-worldwide/#topicHeader__wrapper [https://perma.cc/T75D-BED9].
7
Esteban Ortiz-Ospina, The Rise of Social Media, Our World in Data (Sept. 18, 2019), https://ourworldindata.org/rise-of-social-media [https://perma.cc/7DZ4-K8CS].
8
Id.
9
Vanessa Cezarita Cordeiro, “Kidfluencers” and Social Media: The Evolution of Child Exploitation in the Digital Age, Humanium (Feb. 23, 2021), https://www.humanium.org/en/kidfluencers-and-social-media-the-evolution-of-child-exploitation-in-the-digital-age/ [https://perma.cc/GF7C-AMKL]. This article was published in 2021, so this number has most likely expanded since.
10
Rachel E. Greenspan, TikTok is Breeding a New Batch of Child Stars. Psychologists Say What Comes Next Won’t Be Pretty, Insider (July 9, 2020, 1:42 PM), https://www.insider.com/psychologists-say-social-media-fame-may-harm-child-star-influencers-2020-5 [https://perma.cc/TJQ6-S44H].
11
Knight, supra note 1.
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14
Gabriella Swerling, Instagram and YouTube ‘Kidfluencers’ Exploited by Pushy Parents to Make Money, Says Report, The Telegraph (May 9, 2022), https://www.telegraph.co.uk/news/2022/05/09/instagram-youtube-kidfluencers-exploited-pushy-parents-make/ [https://perma.cc/2RTZ-VVRJ].
15
Cordeiro, supra note 9.
16
29 C.F.R. Pt. 570 (2022).
17
Entertainment Industry Employment, U.S. Dep’t of Labor, https://www.dol.gov/general/topic/youthlabor/entertainmentemployment [https://perma.cc/W9LA-GEDH].
18
Coogan Law, SAG-AFTRA, https://www.sagaftra.org/membership-benefits/young-performers/coogan-law [https://perma.cc/FUH6-63AJ].
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24
Jennifer González, More Than Pocket Money: A History of Child Actor Laws, Library of Congress (June 1, 2022), https://blogs.loc.gov/law/2022/06/more-than-pocket-money-a-history-of-child-actor-laws/ [https://perma.cc/KZ8C-KJDH].
25
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26
Cordeiro, supra note 9.
27
Id.
28
See Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. State of Nebraska, 262 U.S. 390 (1923).
29
Pierce, 268 U.S. at 535-36.
30
Meyer, 262 U.S. at 401.
31
Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 167 (1944).
32
Id.
33
Id.
34
Coogan Law, supra note 18.
35
Burke, supra note 5.
36
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37
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