Child Content Creators: What Is Protecting Minors from Exploitation?

by Beth Ann Powers, Associate Member, University of Cincinnati Law Review Vol. 92

I. Introduction

Parents are proud and want to share with the world how great their kid is through social media. Whether that be pictures from their birthday and first day of school, or videos of their first steps and school performances. But what happens when that parent gains a large social media following and is then sharing their young child with millions of viewers? What happens when a parent starts using their child in videos to increase engagement and gain sponsorships? Does the child have a right to profits made from their appearance in the video? And what happens when a parent knows that thousands of people are saving videos of their minor child doing gymnastics or in a bathing suit? How can a child be protected from videos of themselves being posted when their parents are the ones sharing them? These questions will continue to loom, as the prevalence of children on social media continues to grow, as do the potential consequences for the children involved. This is a prominent debate, not only regarding what rights children should have in content they create or are featured in online, but also what rights children have not to be featured in videos—even if the people featuring them are their parents.

This article discusses the role children play on social media and their right to be protected from exploitation. Part II will provide background information of children’s involvement in social media and the landscape surrounding the development of child protection laws. Part III will provide real world examples of potential child exploitation occurring on social media platforms. Part IV concludes with an emphasis on the need for development of the law and a suggestion for moving forward.

II. Background

A. Children’s Involvement in Social Media

As social media platforms grew in popularity, children became heavily involved not only as consumers, but as creators of content. With their involvement, concerns quickly arose as to how to protect children from bullying, harassment, and exposure to inappropriate content as well as how to protect the funds children generate from posts and their rights to not be featured in posts.¹ A prominent part of the social media industry today is what are called, “kidfluencers,” also known as kid influencers, who have a large following on social media platforms. Often, these kids are featured in videos doing just about anything: opening toys, getting ready for school, or dancing with their parents. Somehow, they end up gaining a following and end up on featured pages, exposing them to even more viewers.

These views and engagements with posts generate profit from many of these platforms. For example, it is estimated that YouTube pays $0.018 for each view of a video, which amounts to $18 for every 1,000 views.² By comparison, on TikTok—another prominent social media platform—creators who join the “Creator Fund” make between $0.02 and $0.04 for every 1,000 views.³ This is significantly less than YouTube, with only $20-40 for every one million views.⁴ Most creators on both apps do not get enough views to earn much money; however, the top creators receive billions of views, generating millions in income.⁵ From this exposure, creators often gain the attention of companies willing to partner to promote a product.⁶ On YouTube specifically, creators receive approximately 55% of the revenue generated from their channel, so for every $100 an advertiser spends, $55 goes to a creator.⁷ On TikTok, creators make anywhere from $20 to thousands on sponsored or brand partnership posts, and approximately 67% of creators say they earn the most income from these sponsored posts.⁸

This huge earning potential on social media platforms has drawn attention specifically to children as they generate revenue either from their own channels or channels run by their parents. One former child actor expressed her concern saying “[i]t is definitely time to take a look at the ways parents are making money off the performance or work of minors.”⁹ In 2021, seven-year-old Nastya earned $28 million from her YouTube channel full of videos of her life decorating cupcakes and spending time with her friends, making her the sixth highest paid person on the app.¹⁰ Similarly, ten-year-old Ryan Kaji made $27 million on YouTube on his channel reviewing and playing with toys, making him the seventh highest paid person on the app.¹¹ Ryan began making these videos at only age four and grew to have 55.5 billion views by the end of 2021 and was YouTube’s highest-earning creator in 2018.¹² For Ryan, his parents and agents handle his finances, but how much of those earnings is he legally entitled to?¹³

B. Landscape of Children’s Protections on Social Media

When children like Ryan gain a large following online and, consequently, earn a substantial amount of money, they face threats of exploitation. Currently, there is not much in the realm of child protection online other than protections regarding data collection from children, primarily from the Children’s Online Privacy Protection Act (“COPPA”). COPPA was created in 1998 and amended in 2013.¹⁴ COPPA applies to operators of a website or online service (including apps) directed to children or any operator that has actual knowledge that it is collecting personal information from a child.¹⁵ It prevents collection of personal information from children age thirteen and under, including voice, audio, image, geolocation, and online contact information, unless obtaining parental consent.¹⁶ The primary goal of COPPA is to “place parents in control over what information is collected from their young children online.”¹⁷ To comply with COPPA, websites and apps must post a privacy policy describing its information practices for children’s personal information. While it may alleviate some concerns of children being so heavily involved on the internet, it does not delve into the particulars of children’s rights on social media platforms.

An area of law that provides protection to children who earn a significant amount of income, like several of these social media stars, has been child labor laws, specifically for child actors.¹⁸ The California Child Actor’s Bill (“Coogan Law”), was created in 1939, because of a child actor, Jackie Coogan, suing his mother for spending all the earnings he had made from starring in films as a child.¹⁹ The Coogan Law protects child actors by essentially preventing parents from using all the money earned by their child by requiring that 15% of the child actor’s gross earnings be set aside in a Coogan Trust Account.²⁰ This account can be monitored, but not withdrawn from, by a legal guardian until the child reaches legal age, at which point the child can claim the money for themselves.²¹ The goal of the Coogan Law is to ensure children can access at least some of the funds that they earned without their parents or guardians using it all, since a minor cannot legally control their own money.²² Still, 15% of the child’s gross wages is a relatively small portion to be set aside, as the remainder is free for the parents to use. Additionally, not all states have adopted the Coogan Law, or analogous regulations. Only California, New York, Louisiana, and New Mexico implement this protection.²³ Thus, while the Coogan Law exists and adds some protection for child actors, it still only protects a small percentage of a child’s earnings for when they become of legal age to access them. In general, no similar protections are currently in effect to protect children in social media. However, Illinois has been the first state to pass legislation that essentially extends the Coogan Law to social media stars.²⁴ The bill is to go into effect July 1 of this year and requires parents or guardians to set aside their child’s gross earnings in a trust as well as creates a path for children to sue if parents instead keep the money for themselves.²⁵

The difficulty in creating more extensive child protection laws for children creating content on social media is the involvement of parents in children’s careers. Numerous bills have been proposed in an attempt to make child interactions on social media safer, but none are incredibly popular nor are all-encompassing because of the precedent regarding parental oversight of children.²⁶ Utah and Arkansas, for example, have introduced bills that require minors to get parental consent before creating social media accounts.²⁷ Utah’s bill even goes so far as requiring social media companies to provide the minor’s parent or guardian access to the content and interactions of the account.²⁸ This bill received immediate criticism and legal threats regarding children’s First Amendment free speech rights.²⁹ In Texas, one proposed bill goes as far as restricting minors’ access to certain kinds of content, like information that could lead to eating disorders, on social media.³⁰ While the bill may be good-intentioned, it similarly has been challenged by social media companies and others based on free speech concerns, as the restriction would be content-based, presumptively a violation of the First Amendment.³¹

The Utah and Arkansas bills follow a similar approach to COPPA, using parental consent as an attempt to add a layer of safety for children.³² Many social media platforms contain similar parental-consent requirements are for minors under a certain age to be able to create an account.³³ Coogan Laws similarly give control to parents in an attempt to protect children, allowing 85% of a child’s earnings to go directly to children’s parents to care for them. But not all parents will have their child’s best interest at heart, nor will they all manage their child’s revenue in a way that ensures that their child will see most of it one day. The role parents play in children’s social media productions creates a complicated legal scenario, as precedent leaves a blurry line between allowing family autonomy and intervening when child exploitation is occurring.³⁴

The Supreme Court cases Meyer v. Nebraska,³⁵ Pierce v. Society of Sisters,³⁶ and Loving v. Virginia³⁷ collectively created the precedent that parents have the right to make crucial decisions regarding their children and essentially that families cannot be completely controlled by the State. Pierce specifically held that legislation may not unreasonably interfere with the liberty of parents and guardians to “direct the upbringing and education of children under their control.”³⁸ Similarly, the Court in Meyer v. Nebraska protects an individual’s freedom to establish a home and control the upbringing of their children as they see fit.³⁹ However, while parents have a right to raise their children as they see fit, the Court also recognized the State has a stake in the functioning of families and the well-being of children.⁴⁰ This was the sentiment in Prince v. Massachusetts, where the Court held that there are levels to family life in which the State cannot interfere, yet parental authority is not above state limitations.⁴¹ The state, “serving as parens patriae, has the power to restrict parental control, including, but not limited to, the regulation of child labor.”⁴² The Court acknowledged the general regard for parental control but emphasized the strong interest of the state in preventing child exploitation.⁴³ The Supreme Court attempted to strike a balance between the recognition of parental authority and the right of children to be protected from parental abuse in Parham v. J.R., and ultimately created a legal presumption that parents act in the best interests of their children, based on the idea of parental rights.⁴⁴ This was a rebuttable presumption, though, based on a finding that parents have abused their authority.⁴⁵ These cases leave children in the social media realm in an peculiar space—the state defers to the parent, so what real control do children have over their earnings and their choice to be featured online unless there was some sort of evidence of explicit abuse or exploitation?

III. Discussion

Worries of child exploitation online are not unfounded. There are several ongoing online accounts that have come under scrutiny because of the way children were featured on them. One example is Wren Eleanor, a four-year-old girl who was featured on an account managed by her mother on TikTok.⁴⁶ Wren’s mother posted videos of Wren being a typical child and posing in outfits for the day. However, concern arose from followers who noticed comments on the posts of Wren that appeared to be predatory.⁴⁷ Particularly, followers were concerned that videos of Wren in a bathing suit or eating specific foods had significantly more views and saves than other posts of her.⁴⁸ Despite these warnings, Wren’s mom continued to post videos to her 17.3 million followers, undoubtedly generating a large income.⁴⁹ In the current legal state, there is very little that could be done to prevent this potential exploitation as it is Wren’s mother running the account. Another example of concern of child exploitation is in the LaBrant family. The LaBrants were under scrutiny for posting videos of their (at the time) six-year-old daughter in a very vulnerable state after they played a prank on her.⁵⁰ The LaBrant family documents just about everything about their children’s lives, and have earned millions from their strictly family-related content.⁵¹ This too has been questioned by many online, wondering what rights the children have to the income they certainly have contributed to as a family as a whole.

An embedded concern of children on social media in general is the idea that their parents control the content of their child and put it out to the world, leaving a digital trail that may last forever. While parents can choose how to raise their children, as affirmed by Supreme Court precedent, there is well-established concern about the content of children being online for whomever to view that the children never had any control over.⁵² This concern is illustrated through the example of Spencer Elden’s lawsuit about his appearance on the Nirvana album cover of “Nevermind” that he was featured on at only four months old.⁵³ In the lawsuit, Elden claims he suffered “permanent harm” and emotional distress because of his association with the album.⁵⁴ Elden was put on this cover with his parents’ consent and now claims the producers of the album and others all profited at his expense.⁵⁵ This decision made by Elden’s parents when he was just a child led to a naked photo of him being widely spread for years, all without his own volition. Currently, there is no viable way to legally manage that concern because of free speech protections afforded by the First Amendment, as those restrictions likely would be found to be unconstitutional content-based restrictions.⁵⁶

IV. Conclusion

In summary, there are numerous concerns regarding children and their role on social media—in general and in content-creating. While accounts featuring kids like Wren Eleanor and families like the LaBrants may be entertaining, viewers should not overlook the fact that it is indeed children being shown to millions of people, without an ability to consent to the content themselves. It is very possible as children prominent on social media become adults, similar stories to Spencer Elden may emerge.

Potential paths forward regarding child exploitation on social media have been explored through proposed, pending, and failed legislation by various states and Congress. But currently, none of these proposed options seems very viable or really on-point of the key issues addressed here. So, what can be done to truly address children on social media earning such large sums of money and what can be done to prevent their exploitation? There is unfortunately no definitive solution at this point. However, the current best first step is likely to expand what is being done in Illinois by extending the Coogan Law to protect the revenue children earn on social media. Further discussions and examples of children being exploited on their parents’ social media accounts likely will only continue to be a problem as these child stars age.

Cover Photo by Darren2 on nappy

Beth Ann Powers

References

1
Julia Carrie Wong, ‘Kidfluencers’ Are Earning Millions on Social Media, But Who Owns That Money?, The Guardian (Apr. 24, 2019), https://www.theguardian.com/media/2019/apr/24/its-not-play-if-youre-making-money-how-instagram-and-youtube-disrupted-child-labor-laws.
2
Werner Geyser, How Much do YouTubers Make? A YouTuber’s Pocket Guide, Influencer MarketingHub (Jan. 30, 2024), https://influencermarketinghub.com/how-much-do-youtubers-make/; Kate Daugherty, How Much Do Youtubers Make?, Finance Buzz (Jan. 22, 2024), https://financebuzz.com/how-much-youtubers-make#:~:text=The%20average%20YouTube%20pay%20in,or%20%2418%20per%201%2C000%20views.
3
Josh Howarth, How Much Do TikTok Influencers Make? (2024 Data), Exploding Topics (Feb. 2, 2024), https://explodingtopics.com/blog/tiktok-earning-stats; The Creator Fund on TikTok has certain parameters that must be met before a creator can join and start earning revenue from views. To join, a creator must have at least 10,000 followers and have 100,000 views on their videos over the past 30 days.
4
Id.
5
Geyser, supra note 2; Daugherty, supra note 2.
6
Id.
7
Id.
8
Howarth, supranote 3.[/mfm] It is unsurprising with this earning potential that the social media influencing industry is estimated to be worth more than $21.1 billion.⁸Werner Geyser, The State of Influencer Marketing 2024: Benchmark Report, Influencer MarketingHub (Feb. 1, 2024), https://influencermarketinghub.com/influencer-marketing-benchmark-report/.
9
Wong, supra note 1.
10
Abram Brown & Abigail Freeman, The Highest-Paid YouTube Stars: MrBeast, Jake Paul and Markiplier Score Massive Paydays, Forbes (Jan. 14, 2022), https://www.forbes.com/sites/abrambrown/2022/01/14/the-highest-paid-youtube-stars-mrbeast-jake-paul-and-markiplier-score-massive-paydays/?sh=3a3f25891aa7.
11
Id.
12
Id.; Madeline Berg, How This 7-Year-Old Made $22 Million Playing with Toys, Forbes (Dec. 3, 2018), https://www.forbes.com/sites/maddieberg/2018/12/03/how-this-seven-year-old-made-22-million-playing-with-toys-2/?sh=5645a5754459.
13
Berg, supra note 13.
14
Children’s Online Privacy Protection Act of 1998, 15 U.S.C. §§ 6501-6505 (2013).
15
Fed. Trade Comm’n, Complying with COPPA: Frequently Asked Questions, https://www.ftc.gov/business-guidance/resources/complying-coppa-frequently-asked-questions (last visited Feb, 28, 2024).; COPPA applies to information collected directly from children. It leaves open the ability to collect information about a child collected from parents or schools, for example.
16
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17
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18
Loring Weisenberger, A Producer’s Guide to Coogan Law, Wrapbook (Sept. 10, 2019), https://www.wrapbook.com/blog/producers-guide-coogan-law.
19
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20
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21
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22
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23
Weisenberger, supra note 19; Even though only a few states have adopted the Coogan Law, or similar child actor protection laws, they are the states where productions using child actors typically occur. While it may look like only a few states have bought into this idea, they are the most significant states when it comes to child actors taking on roles and earning an income.
24
Chris Teale, New ‘Kidfluencer’ Law Allows Child Social Media Stars to Sue Parents, Route Fifty (Aug. 21, 2023), https://www.route-fifty.com/workforce/2023/08/new-kidfluencer-law-allows-child-social-media-stars-sue-parents/389590/.
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26
See, e.g., Protecting Kids on Social Media Act, S. 1291, 118th Cong. (2023), https://www.congress.gov/bill/118th-congress/senate-bill/1291; California Age-Appropriate Design Code, AB 2273 (Ca. 2022), https://californiaaadc.com/; Utah Legislature Passes Bills Restricting Social Media Accounts for Minors, Priv. & Info. Sec. L. Blog (Mar. 10, 2023), https://www.huntonprivacyblog.com/2023/03/10/utah-legislature-passes-bills-restricting-social-media-accounts-for-minors/.
27
Tate Ryan-Mosley, Why Child Protection Bills Are Popping Up All Over the US, MIT Tech. Rev. (Apr. 24, 2023), https://www.technologyreview.com/2023/04/24/1071992/child-safety-privacy-bills-us-tech-policy/.
28
Utah Legislature Passes Bills Restricting Social Media Accounts for Minors, supra note 27.
29
Alfred NG, Where Parental Snooping Is Becoming the Law, Politico (Apr. 11, 2023), https://www.politico.com/news/2023/04/11/social-media-privacy-parents-kids-00091400.
30
Id.
31
Id.; Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015); (holding that content-based discrimination is presumptively unconstitutional as it typically triggers strict scrutiny, a difficult standard to pass).
32
Utah Legislature Passes Bills Restricting Social Media Accounts for Minors, supra note 27; Ryan-Mosley, supra note 28.
33
Barbara Ortutay & Haleluya Hadero, Meta, TikTok and Other Social Media CEOs Testify in Heated Senate Hearing on Child Exploitation, Associated Press (Jan. 31, 2024), https://apnews.com/article/meta-tiktok-snap-discord-zuckerberg-testify-senate-00754a6bea92aaad62585ed55f219932.
34
Munirat Suleiman, Is Kidfluencing Child Labor? How the Youngest Influencers Remain Legally Unprotected, Col. Undergraduate L. Rev.(Jun. 16, 2022), https://www.culawreview.org/journal/is-kidfluencing-child-labor-how-the-youngest-influencers-remain-legally-unprotected.
35
Meyer v. Nebraska, 262 U.S. 390 (1923)
36
Pierce v. Society of Sisters, 268 U.S. 510 (1925).
37
Loving v. Virginia, 388 U.S. 1 (1967).
38
Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925).
39
Meyer v. Nebraska, 262 U.S. 390, 399-400 (1923).
40
Prince v. Massachusetts, 321 U.S. 158, 166-68 (1944).
41
Id.
42
Id. at 166.
43
Id.
44
Parham v. J.R., 442 U.S. 584 (1979).
45
Id.
46
Katie Collins, TikTok Parents Are Taking Advantage of Their Kids. It Needs to Stop, CNET (Aug. 7, 2022), https://www.cnet.com/tech/services-and-software/tiktok-parents-are-taking-advantage-of-their-kids-it-needs-to-stop/.
47
Id.
48
Id.
49
Id.
50
Id.
51
Collins, supra note 45.
52
Id.; Wong, supra note 1.
53
Matt Sevens, Lawsuit Over Naked Baby on Nirvana’s ‘Nevermind’ Is Revived, N.Y. Times (Dec. 21, 2023), https://www.nytimes.com/2023/12/21/arts/music/nirvana-nevermind-baby-lawsuit.html.
54
Id.
55
Id.
56
Id.; Reed, 576 U.S. 155.