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Kidfluencers Recast Spotlight on Children’s Rights in Digital Entertainment

Kidfluencers Recast Spotlight on Children’s Rights in Digital Entertainment

September 5, 2023

Child stars are nothing new. Some people grew up watching Drew Barrymore in E.T. or Macaulay Culkin in Home Alone. Others grew up watching Harry Potter. Today, most children know Jojo Siwa or Ryan from “Ryan’s World.”

As the state of entertainment has expanded from movies and television to YouTube and TikTok, children continue to proliferate across all sorts of screens. Though the ways consumers access entertainment have changed, the laws protecting children in the space have not. The time is ripe to update laws to better reflect the changing media landscape by expanding coverage to protect child social media influencers (“kidfluencers”).

In the early days of moviemaking, Jackie Coogan was a breakout child performer who rose to fame by acting in several Charlie Chaplin movies. He became what could be considered the world’s first child star, earning millions of dollars through his work on the silver screen. But without any laws dictating children’s rights in the industry, Coogan was defrauded by his parents, leaving him with financial troubles for much of his life. The lawsuit Coogan filed against his mother and stepfather was settled out of court, but his case led to the passage of the California Child Actor’s Bill, often known colloquially as the Coogan Law. Alongside requirements for schooling, the law dictates any actor under the age of eighteen must have a Coogan Trust account that sets aside at least 15 percent of their earnings for their use once they turn 18.

While these policies are relatively cut and dry for actors, the digital landscape for child influencers presents its own unique challenges. Though a somewhat burgeoning industry, advertisers will likely spend approximately $21 billion on influencer marketing this year. In 2020, Ryan Kaji, the ten-year-old behind the “Ryan’s World” YouTube channel, brought in over $30 million. In addition to the compensation for sponsored posts (which can fetch upwards of $10,000 or more), kidfluencers earn income through sponsorships and merchandise sales. Kaji for instance has toy sponsorships with different companies, including Nickelodeon, Marvel, Lego, Playmobil, and Nintendo.

Because of age restrictions on platforms like YouTube and TikTok, many kidfluencer accounts are managed and run by their parents, whose identities often remain anonymous behind the camera. Of course, there are parents who share photos and videos of their children online for social capital, but there’s a difference when the content comes with financial capital. And parents sadly don’t always have their children’s best interests in mind.

Performing as a profession lends itself to a certain level of intrusiveness—paparazzi, increased media attention, and public intrusiveness, to name a few—but performers work by portraying characters. Children who are involved in family vlogging or create their own content online release private information reflected in their real, offline lives. The absence of a traditional employer-employee relationship, the privacy concerns, and the power dynamics between parents and children—plus the large dollar amounts at stake—create the potential for exploitation. Updated legislation is necessary to safeguard kidfluencers’ rights and interests.

Unfortunately, these laws are rare. Only two-thirds of states regulate child entertainment, and only half require child entertainers to obtain work permits. Only five states have Coogan laws. The Fair Labor Standards Act contains an exception for child entertainers, precluding child actors from the same protections as other child workers (this provision is coincidentally sometimes referred to by the name of another famous child star—the Shirley Temple Act). Under the Shirley Temple Act, exempted child entertainers are still subject to wage and hour restrictions set by federal law. Under Coogan laws, if a parent of a child actor fails to provide the movie studio with a Coogan account number, the child’s work permit is voided. But since work permits aren’t required for kidfluencers, especially because there are no requirements for work permits or wage and hour restrictions when a minor is employed by their parents under U.S. labor laws, parents and guardians have no expectation to open a Coogan-style account.

Luckily, the spotlight is starting to brighten on kidfluencers. Illinois became the first U.S. state to pass such a law in August 2023. Senate Bill 1782 applies to all video content made in the state of Illinois, stating kids under 16 who appear in at least 30 percent of the content over a 30-day period must receive a portion of the revenue, which will be set aside in a trust until they are legal adults. Minors can bring legal action against their parents or family should these requirements be neglected. For the vast majority of parents who post occasional photos and videos of their children on social media, this law will have no impact on them. But where children are a regular feature in a monetized social media account, they now have legal protections.

Other states are paying attention. As a result of the Illinois bill, a Pennsylvania lawmaker revealed plans to introduce similar legislation. One path forward would be for more states to update pre-existing labor laws and create Coogan-style additions requiring advertising companies and kidfluencers’ parents or managers to be legally responsible for failing to set aside a portion of kidfluencers’ incomes, mirroring protections afforded to other child entertainers. These laws cover a wide range of child entertainers, from background actors, voice actors, stunt people, and comedians to writers, singers, composers, and choreographers. If Coogan laws can span many of these sectors, kidfluencers should fall within that scope, too.

California, which hosts headquarters for top social media platforms like YouTube, TikTok, Instagram, and Snap, in addition to spearheading Coogan laws in the first place, should especially take note. But a state-by-state approach risks creating a patchwork of state laws with varying requirements that might make it harder for would-be kidfluencers to find success. Another option would be for Congress to step in and create a federal Coogan law for kidfluencers.

The Writers Guild of America and SAG-AFTRA strikes have raised questions as to how to best compensate media writers and creators to reflect the new landscape of entertainment today. Social media influencers still face an uphill battle in getting recognition for the serious financial role they play in the entertainment industry. While those in entertainment ask questions on how to best compensate performers in this new era of entertainment, kidfluencers should also be part of those conversations.

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