A Star is Born: Lack of Income Rights for Entertainment's Newest Stars, "KidTubers."

• Author: Wirvin, Katherine
• Date: 01 January 2024

TABLE OF CONTENTS
                I. INTRODUCTION 62
                II. BACKGROUND 63
                A. The Fair Labor Standards Act and Child Actors 63
                B. Coogan Laws: Origins 64
                C. The Expansion (or Lack Thereof) of State Coogan Laws 65
                D. Reality TV and Children 66
                E. In Comes YouTube... and YouTube Income 69
                F. KidTubers: Children of Family Vloggers and Kidfluencers 71
                G. The Right of Family Autonomy 73
                H. Disconnect Between the Children, the Brands, and the Platforms 75
                I. France's New Laws to Protect Child Influencers 76
                III. ANALYSIS 77
                A. Proposal Part 1.A: Create a Federal Coogan Law That Follows
                Section 5 of Pennsylvania's Child Labor Act 77
                B. Proposal Part 1.B: Tweaking Section 5(a)(1) of Pennsylvania's
                Child Labor Act to protect Kidfluencers 79
                C. Proposal Part 1.C: Family Vlogging as a Reality Program Under
                Section 5(a)(2) 80
                D. Issues and Solutions 82
                IV. CONCLUSION 85
                

I. INTRODUCTION

On July 2, 2021, a video--which has since garnered over 615,000 views (1)--was posted to then-eight-year-old KidTuber (a shorthand term this Note will use to jointly discuss kidfluencers and the children of family vloggers) Everleigh Rose Smith-Soutas's personal (2) YouTube channel. (3) The 15-minute video, titled "Everleigh Spends 24 Hours at Her Dance Studio!!!" and filmed by Everleigh's stepfather Cole LaBrant, documents the eight-year-old's 24-hour stay at her dance studio. (4) However, the video serves as an advertisement (ad) for the doll brand "Dream Seekers." (5)

The video starts out with Everleigh introducing the three different Dream Seeker dolls and stating that the reason she decided to do this video is "because [her] dream is to be a professional dancer... and these dolls are called dream seekers," which cuts to the start of the video long ad for the doll brand. (6) Everleigh and Cole nestle ads for the dolls in between scenes of Everleigh practicing her dance routine and showing her dance studio to viewers. (7) Cole suggests playing hide and seek with the dolls, Everleigh describes how the doll's box has a place to write your dreams, and throughout the whole video, the doll is by her side. (8) The video also has an ad that plays before the video starts and an ad placed in the middle of the video, indicating that this is a monetized video by YouTube. (9)

Everleigh appears in nearly every video posted on the LaBrant family YouTube channel while also starring in her own channel's videos, and a channel dedicated to videos of her and Cole. (10) However, because Everleigh, along with many other KidTubers, doesn't live in Illinois (the only state that has enacted a labor law for KidTubers as of the writing of this Note), she is not entitled to any money that the videos generate. (11)

This Note will focus on the lack of income rights for KidTubers and analyze potential legal pathways that would provide these children the right to their deserved income. Section II will discuss the current legal landscape for traditional child actors in the United States and the rise of YouTube and subsequently KidTuber content. Section II will also give a brief background on the right of family autonomy and the infancy law doctrine, two dilemmas that regulating KidTuber content faces, and ends with a discussion on the legal protections given to child social media stars in France. Section III will propose and analyze a three-component proposal for a federal Coogan Law that mirrors Section 5 of Pennsylvania's 2012 Child Labor Act--as well as the issues this proposal might face.

II. BACKGROUND

A. The Fair Labor Standards Act and Child Actors

The Fair Labor Standards Act (FLSA) was passed in 1938, establishing minimum wage rights, overtime pay, recordkeeping, and child employment regulations. (12) Child labor provisions (also known as child labor laws) were put in place to ensure that young peoples' health, well-being, and educational needs were being met while working and that the work they performed was safe. (13) The FLSA's child labor provision's focus is mostly tailored toward protecting children from working in dangerous jobs (mills, factories, farms) because those employment sectors had become popular during the Second Industrial Revolution, soon before the FLSA was written. (14) To prevent child labor issues, the FLSA "prohibits an employer from using 'oppressive' child labor and 'applies to all aspects of employment such as working conditions and allowable hours of work per week.'" (15)

The FLSA also includes exemptions in its coverage of those protected. (16) Most notably, minor children employed by their parents have no minimum age requirement for work. (17) Another famous exception to coverage within the FLSA is the "Shirley Temple Act." (18) The "Shirley Temple Act" refers to the FLSA exemption of children working as actors or performers in "motion pictures or theatrical productions, or in radio or television productions." (19) This work was not considered oppressive or particularly hazardous (20) like the work that the FLSA intended to protect children from at the time of its enactment. (21) Furthermore, the FLSA was written during a time when child actors, such as Shirley Temple (for whom the exemption is nicknamed after), were becoming popular in entertainment. (22) Therefore, the FLSA does not provide protection for children in these industries. Because of this, it has been up to individual states to decide whether they will establish regulations on child acting and performance work and how strict those provisions are. (23)

B. Coogan Laws: Origins

Thanks to actor Jackie Coogan, (24) young child actors in California are (theoretically) (25) protected from financial exploitation due to the creation of Coogan Accounts. (26) Jackie Coogan was a child actor who became a star in the 1920s. (27) However, all of the earnings he made as an actor while he was a minor belonged to his mother. (28) In 1938, 23-year-old Coogan sued his mother and stepfather (who was also his former business manager) for "his life's earnings of more than $4 million" that he had earned over his childhood career. (29) Unfortunately for Coogan, his mother had spent it all, insisting that she was "entitled to all his earnings up to the time he became of age." (30) Coogan won his lawsuit, but out of the $4 million he had earned, in the end he received only $126,000. (31)

In response to the Coogan scandal, California passed the California Child Actor's Bill (often known as the Coogan Act) the following year. (32) The original law gave judges "discretionary power to require that a contract set aside some of a child actor's income in a trust fund or savings account, only to be opened when the child reached the age of majority." (33) However, this original version of the law was plagued with loopholes that were often exploited by parents. (34)

In 2000, the California Coogan Law was updated with the hope that the revisions would help reduce the exploitation of loopholes. (35) This update to the California Coogan Law now requires that fifteen percent of the minor's gross earnings (rather than the minor's net earnings, like in the original 1939 Coogan Act), be deposited into the child's Blocked Trust Account by the minor's employer, removing judicial discretion. (36) This change to gross earnings was to try to avoid "management" or "secretarial" fees from being deducted by the minor's parents. (37) The money deposited into the account is not permitted to be accessed by the beneficiary (the child) or "any other individual, individuals, entity, or entities" until the child turns eighteen or is declared an emancipated minor unless there is a written order from the superior court accepting a petition of the parent or legal guardian, the minor, or the trustee showing that the trust needs to be amended or terminated. (38)

C. The Expansion (or Lack Thereof) of State Coogan Laws

Several other states have followed in California's footsteps, creating their own versions of Coogan Account requirements, which often require child actors to have that state's version of a Blocked Trust Account set up before they start work in the entertainment industry. (39) However, the kind of account, how to open an account, and who qualifies for these protections differ between states. (40) Some states, such as Pennsylvania, hold that an "irrevocable child performer trust account or a qualified tuition program" must be established if the minor expects to earn more than $2,500 in the production, expects to receive residuals, or if the child has already earned $2,500 in previous employment. (41) Pennsylvania also provides that the account can only be accessed when the minor reaches eighteen years of age unless for a legitimate health or educational reason. (42)

In total, thirty-three states have some form of regulation on children participating in the entertainment industry, and twenty-six states require work permits for child entertainers. (43) Each state's work permit requirements and conditions vary, but many states that do have regulations in place protect children under eighteen, and nearly all protect children under sixteen years of age. (44) However, only ten states currently require a trust account for child actors, which gives child stars some protection over their profits. (45) These states are California, New York, Louisiana, Illinois, Nevada, New Mexico, Kansas, North Carolina, Pennsylvania, and Tennessee. (46)

D. Reality TV and Children

In the early 2010s, "reality television stars were the only 'ordinary' people to appear on screen," and network reality television shows such as Jon & Kate Plus 8 and 19 Kids and Counting found immense viewership. (47) Jon & Kate Plus 8 featured the highs and lows of the Gosselin family, with a prominent focus on the children. (48) With reality television, producers are often able to get around rules that govern traditional, scripted television because a star's involvement can be classified as "participation" rather than acting and because many reality stars are not represented by...