"They're Just Playing": Why Child Social Media Stars Need Enhanced Coogan Protections to Save them from their Parents.

• Author: McGinnis, Nila

1. INTRODUCTION

   In May 2020, American social media influencer Myka Stauffer, who boasted almost one million followers across various internet platforms at the peak of her career, (1) announced that she and her husband were "rehoming" their autistic son, Huxley, whom they adopted from China three years prior. (2) Over the course of their journey to adopt Huxley, the Stauffers monetized dozens of posts and videos across several channels and accounts on YouTube and Instagram, prominently featuring Huxley in advertisements for brands like Dreft, Danimals, and Playtex Baby. (3) The Stauffers, who were also accused of duct taping Huxley's hands to stop him from sucking his thumb, were investigated and subsequently cleared from these and other abuse allegations after Huxley was placed in a new home through the help of his adoption agency. (4) What will young Huxley see of the estimated tens of thousands of dollars his parents earned from his appearances in online videos and posts featuring personal information about his mental and physical disabilities, therapy, and progress before being placed into another home? (5) According to California Law, he is not entitled to a single dime. (6) Neither are any of the Stauffer's four biological children, nor any other social media star earning money online who happens to be a minor. (7)

   Some of the best known and highest-paid child stars of the 21st-century have become famous for appearing in posts and videos made on social media platforms by their parents. (8) This phenomenon coincides with the rise of influencer marketing, in which companies focus their attention on advertising through the recommendation of influential figures, as opposed to mass media campaigns to large, targeted markets. (9) Children with large social media followings have been indispensable to the rise of influencer marketing, an industry estimated to be worth more than $13 billion at the time of this writing. (10) Marketing giant Hootsuite estimates that "at least 10 percent" (11) of digital marketing budgets in this country go toward influencer marketing, and the trend continues to grow as digital media usage flourishes.

   Despite the popularity of influencer marketing, minors working as influencers in the United States have no legal right to the money they earn by appearing in content posted by themselves or their parents. (12) This creates a large risk of exploitation--physically, financially, and emotionally. (13) Because states have not recognized social-media content creation or user-generated content production as a form of labor, child entertainers have no specific protections under employment law. (14)

   The rules concerning the financial future of children earning money on social media have yet to be written. (15) Parents control their children's image, privacy settings, and financial gains on social media without regulation in this country. (16) Widespread change must come soon. Several states long ago enacted legislation to protect child actors in traditional media like film and television from the risk of financial exploitation, most notably in the form of "Coogan laws." (17) These laws vary wildly, but typically require children to acquire work permits, mandate the number of hours children can work and be on set, and require that a certain percentage of a child's earnings be placed into a trust, which can only be accessed by them upon reaching adulthood. (18) These protections have not yet been extended to children working exclusively on social media platforms, and the risk for exploitation therefore continues to fester. (19) Because of the prominence of so-called "family vloggers," or social media family channels that document the lives of parents and children, the need for this type of protection to be afforded to children by the law grows each day. (20) States need to apply Coogan-style laws to child social influencers and seriously examine other social and political measures that can be enacted to protect child social media stars from exploitation.

   An expansion of protections afforded to child stars earning money on social media requires an array of uncharted legislative decisions. (21) This Note will argue, however, that children earning money and providing labor for monetized social media accounts deserve legal protection from the states to protect their financial, physical, and emotional well-being. After introducing the problems with the meager protections in place today, Part II of this Note will analyze and explore the history of child labor protections and the exceptions for child actors and work overseen by parents that have been carved out in state and federal law. Part III will explore recent developments in the law and specific issues in the realm of children on social media that have emerged in the 21st century. Part IV will discuss the unique challenges facing legislators, parents, and regulators alike and will propose solutions for these challenges. The Note will culminate with a call to action, imploring those in power to enact rapid change to protect some of society's most vulnerable members.

2. LEGAL BACKGROUND

   Children who boast large social media followings can earn millions of dollars each year through sponsored advertising posts and videos, as well as kickbacks from social media platforms that sell advertisements on their content. (22) These minors may live all over the country, as parents in the digital age do not need networking connections, a production set, or any of the other resources required for child stars of the past. (23) Parents simply need a smartphone or a camera, a cute kid, and a connection to the Internet to share photos and videos. (24) While most social media platforms have minimum age limits, (25) many parents skirt around these rarely enforced requirements by placing a disclaimer in the bio of their child's account stating that the account has been created and maintained by the parents. (26) Additionally, nothing prevents parents from featuring their children on their own social media pages or profiting off of their children's likenesses. While it is true that some teenagers post their own content and run their own monetized accounts, this Note will focus on child-centric accounts created and run by the parents or guardians of child social media stars.

   The Fair Labor Standards Act ("FLSA") is the predominant legislation in this country concerning working conditions for children. (27) Passed in 1938, this set of federal child-labor regulations was passed to "ensure that when young people work, the work is safe and does not jeopardize their health, well-being or educational opportunities." (28) These regulations were passed after the height of the Great Depression and only after decades of tireless advocacy. (29) Protections brought about by FLSA are primarily concerned with traditional occupations that are considered hazardous and aim to prioritize education over labor. (30) This section will discuss the history of child labor in the United States, the FLSA, its exceptions, and the gaps in federal protection that leave child actors and their modern counterparts, child social media stars, under the purview of state law and therefore largely unprotected.

   1. Child Labor in the United States

      From the Industrial Revolution until the 1930s, children were employed under various hazardous working conditions. (31) At the turn of the 20th century, child laborers worked in dozens of industries, some more dangerous and oppressive than others. (32) In urban areas, children worked on the streets selling wares, cleaning shoes, or working as newsies. (33) Other children worked in mines, cotton mills, factories, farms, or in home workshops. (34) In many parts of the country, boys as young as five were hired in light manufacturing plants or glass bottle production factories, as their small hands were ideal for completing glasswork. (35) Many children worked in unregulated chemical plants, used harsh machinery, and were exposed to dust and dangerous pollutants. (36) In 1901, census records indicate that twenty-one percent of boys under the age of fourteen were employed outside the home. (37)

      Despite these hazardous working conditions, many adults were reluctant to support legislation to regulate child labor because of the tremendous services children provided to the labor force. (38) In the 19th and early 20th centuries, many families viewed newborn babies as future economic investments because they relied heavily on income brought home by children as young as five. (39) An increased awareness of dangerous child labor practices and a 1904 Congressional study prompted an unprecedented child labor rights movement in the last few decades of the 19th century, and by 1916 a majority of states had passed some regulations protecting child workers. (40) Debates over state sovereignty and federal power halted discussions about sweeping federal regulations for decades, and states became the primary actors in passing labor protections until the late 1930s. (41) When FLSA was eventually passed in 1938, children under fourteen were barred from obtaining any employment outside of the home, and children under eighteen were not permitted to work in "particularly hazardous conditions." (42)

      In the United States economy today, the "particularly hazardous conditions" from which child laborers were protected have largely gone extinct. Even for adults working in factories or manufacturing, sweeping safeguards have been put in place by the states and the federal government to protect workers. (43) Today, children under fourteen in the United States typically work for friends and neighbors, doing odd jobs like babysitting or yardwork, which occur outside of school hours and do not put children at a high risk of physical harm. (44) However, experts estimate that more than one hundred thousand children are employed in violation of FLSA during any given month, typically in smaller...