Labor / Employment

Will The Cute Videos Of Kids Opening Toys Be Future Labor Law Evidence?

Maybe the small children should just form a union?

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Little Kid playing Grownup

It’s a living.

You ever come across those old timey pictures of 3-year-olds covered in soot because their bite-sized proportions were really good for chimney sweeping? After a bit of shock and appall, I assume that most take a second to appreciate that because of our child labor laws, no child will be subjected to working fresh off overcoming the terrible twos. Not so fast — the role of chimney sweep may have just been exchanged for its far less black lung-disposed cousin, YouTube content creator. From Salon:

When it comes to sharing content of children on social media – particularly via sponsored posts and brand deals – what’s legal isn’t always what’s ethical.

Influencer Brittany Dawn, who initially gained a following for her fitness workouts before pivoting to religious content, recently came under fire for monetizing her foster child on social media.

While Dawn has blurred out her child’s image in photos shared – a stipulation decreed by the U.S. Children’s Bureau for foster parents in their social media rules – she has found a different way to capitalize on being an influencer with a foster child. She includes affiliate links on her posts to promote products like baby monitors. If viewers follow the link and purchase the product, Dawn gets a commission.

As described, it is nice to know that there are at least some checks and balances in place to protect the child’s identity. Not to mention that as a far as evils go, a little extra money because of affiliate links seems to be on a pretty low rung.

Similarly, YouTube family vlogger Myka Stauffer has shared a number of details about her children, and has also relayed her experience of adopting a baby boy from China – who frequently appeared in her videos.

None of this is currently illegal. But this practice exists at the intersection of two social media trends: sponsored content and “sharenting” – when parents post sensitive information about their children online.

“Sharenting” raises pretty clear issues around consent, the right to be forgotten, and the future of how children — all of us, really — deal with the profound access to each other’s lives that social media offers.

There are very few safeguards in place to protect the interests of children – both personal and financial – from their influencer parents. But the questionable practice of leveraging children for followers, fans and sponsorships is currently experiencing a groundswell of attention. Critiques of famous creators like Dawn and Stauffer are becoming more pointed and persistent, while some of the now-adult children of influencers are pushing back…Children…cannot consent to being the star of their parents’ show.

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We all know that law can be lucrative. Above the Law is one of the first places you go to find out when some other firm drops bonuses matching Cravath. But that can be chump change compared to what cash-kid-centered content can be — it is a multimillion-dollar enterprise.

And while the hope and prayer is that these children are living the life playing with their toys, horror stories are out there. I hope I’m not alienating any of our reader base by assuming that no one wants one of these children a decade or two from now to write the next “I’m Glad My Mom Died” — legal protections are an important stand between to protect against the potential to ruin childhoods.

While a child could feasibly find it “fun to be in mommy’s video,” it is unlikely they understand the long-term ramifications of being broadcast to thousands – even millions – of followers. The oversharing of images of children is even a concern for many parents, not just influencers.

But the business aspect of sponsored content adds another layer to this complicated issue. Who is protecting children’s financial interests for the money their influencer parents earn off this content? How much money do children earn for their parents by appearing in their content?

A blinding example of what can happen when these children aren’t protected is why we have the Coogan Act:

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In 1939, California passed the Coogan Act. The law, also known as the California Child Actor’s Bill, was named for former child actor Jackie Coogan, whom many hail as America’s first child actor.

He became famous after appearing as Charlie Chaplin’s adopted son in the 1921 film “The Kid.” But when Coogan reached adulthood, he learned that his mother and stepfather had squandered the $4 million he had earned – what would amount to tens of millions of dollars today.

After Coogan sued his parents and was able to reclaim only a fraction of what was left of his earnings, the California Legislature passed the Coogan Act. The law protects children who have been hired as “an actor, actress, dancer, musician, comedian, singer, or other performer or entertainer” and stipulates that their earnings must be safeguarded for them until they reach adulthood. Nine other states have since enacted similar legislation.

While there is potential for the act to be a model for protecting these entertaining children, it is not yet the rule.

While some lobbyists and activists have called for the Coogan Act to be applied to the children of parent influencers at the federal level, regulations have not yet been adopted.

The Coogan Act was written to protect children in “traditional” entertainment. However, the lines between “traditional” entertainment and social media entertainment continue to blur, making this distinction less and less sound.

Additionally, the Fair Labor Standards Act of 1938, which protects children from “excessive labor,” has not been updated to apply to child influencers, or the children who regularly appear in the feeds of their parents. There’s a notable distinction between child influencers, who may run their own feeds and businesses, and children who are featured by their parents. But the Fair Labor Standards Act protects neither, and even children who run their own social media careers may still have their finances regulated by their parents.

Who knew childsplay could be such serious business?

Why Aren’t There Any Legal Protections For The Children Of Influencers? [Salon]

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

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