WHEN PLAY BECOMES WORK: CHILD LABOR LAWS IN THE ERA OF "KIDFLUENCERS".

• Author: Masterson, Marina A.

INTRODUCTION 578 I. THE RISE OF KIDFLUENCERS 582 II. THE EVOLUTION OF CHILD ACTOR LAW 585 A. A Brief History of Child Labor Laws 585 B. Child Actor Protections 587 C. Development of Coogan Laws 589 III. WEIGHING HARM TO KIDFLUENCERS AGAINST THE RIGHT TO PARENTAL AUTHORITY 591 A. A New Kind of Home-Work 591 B. A Snapshot of Harms Facing Kidfluencers 593 i. Financial Exploitation 593 ii. Health Risks 595 A. Constitutional Right to Family Autonomy 597 IV. PARTIAL-PROTECTION PROPOSAL 599 A. Coogan Trusts 600 B. Work Permits 603 C. Production Regulations 605 CONCLUSION 607 INTRODUCTION

In 2018, viewers regularly tuned in to watch the seven Hobson children play and laugh on their YouTube channel, Fantastic Adventures. (1) The channel had more than 700,800 followers and more than 242 million views. (2) Not only did the viewers benefit from this free entertainment, but Machelle Hobson, the channel's producer and mother of the children, made nearly $300,000 from the series. (3)

But if viewers could look through their screens and glimpse the real lives of these young YouTube stars, they would find that five of the seven Hobson children had not attended school in years, according to police records. (4) Their mother reportedly took them out so they could focus on the YouTube series. (5) The children said that if they forgot their lines or were difficult during production, their mother would beat, pepper-spray, molest, and starve them. (6) Hobson pleaded not guilty to charges of child abuse. (7)

This tragic story reminds us that monetizing children risks unconscionable exploitation, even by their own parents. What's more, the Hobson children had no legal right to the $300,000, even though it was earned through their talents and sacrifices. States have not formally recognized social media production as a form of labor or acting for adults or children, so these entertainers have no specific labor protections. (8)

Children who have large social media followings, like the Hobsons, are colloquially called "kidfluencers." (9) Unlike traditional child acting, parents do not need industry connections or expensive acting classes to make their child a social media star; they just need an idea, a social media account, some filming skills, and luck. As part of a budding $8-billion industry, (10) kidfluencers make money both from companies that pay for the children to advertise their products and from social media platforms that sell advertisement space on kidfluencers' channels. (11) Some will even post content for a company in exchange for free products instead of monetary compensation. (12) Because social media has turned children into potential sources of fame and income, kidfluencers face many threats, including financial exploitation, psychological harm, and extreme loss of privacy.

In this Comment, I propose that state governments need to financially protect child social media influencers. Some states have enacted labor and family statutes to protect traditional child actors from harm, though they do not extend to kidfluencers. A notable way that some states protect child actors is through Coogan Laws. (13) These laws generally mandate state-approved work permits and require that a certain percentage of the child actor's earnings be protected in a trust account, rather than under the control of the parents. (14) States should require Coogan trusts for high-earning social media influencers to protect against financial exploitation, (15) though permits and other production regulations common for child actors are less easily applied in this context.

Though simple in theory, this proposed expansion of labor law raises a host of uncharted policy decisions. As an illustration, California attempted to extend its Child Actor's Bill to social media influencers, but the provision was entirely removed before the bill's amendments passed. (16) Kansen Chu, the California Assemblymember who introduced the so-called "kidfluencer" provision, pointed out the novel challenges of applying existing Coogan Laws to this industry, including how to regulate compensation in the form of "tickets and toys and clothes and other little things." (17) As a solution to this particular issue, this Comment proposes that Coogan requirements should only apply to contracts worth $500 or more because it allows the most commodified kidfluencers to receive immediate protection while the industry works out how and if to regulate other forms of compensation. (18) This is just one example of the open issues addressed in this Comment that need further exploration before another bill is likely to succeed.

While states are considering protective measures, they must bear in mind that child labor law inherently conflicts with family law and the constitutional right to parental authority, particularly in the social media context. Parents traditionally have the right to raise their children how they see fit, (19) but that right is not without limits. (20) Social media production is often overseen by the parents within their own home, and it can look like family play, not work. (21) But at the same time, parents of kidfluencers may have perverse motivations when they stand to gain fame and money from exploiting this "play." (22) Thus, states must balance the right to family autonomy with the interest in protecting child performers.

This Comment explores the history of child labor laws and its interaction with entertainment industries, concluding that social media influencers require similar, but not identical, protections to traditional child actors. There are new calls for regulation in this field, (23) but this Comment is the first to take an in-depth look at the family law implications and address how workplace regulations, like hour limits and tutoring requirements, struggle to fit in this context. Protecting child earnings through Coogan trusts is a practicable way to financially protect kidfluencers, but regulating the content production itself is more difficult. Many states have permit and workplace requirements in studio production to address things like health and education, (24) but these regulations are largely unworkable in the fast-paced social media context, which is generally confined to the family unit. Thus, states should appropriately analyze these issues before simply including kidfluencers under existing child actor regulations.

Part I discusses the rise of "influencing" as a multibillion-dollar industry, ripe for regulation. Part II provides an overview of the history of child labor laws to help explain why child actors, and likely kidfluencers by extension, are excluded from federal labor law coverage. This history has resulted in piecemeal regulation of child actors under state law, which becomes an issue given the mobile nature of social media production. Part III explains why social media production is work, not play, even though it is often performed at home within the family. This work makes child stars vulnerable to risks including financial exploitation, psychological harm, and unprecedented loss of privacy. While states have an interest in protecting kidfluencers from these harms, this context is uniquely family based, with parents often directing the production and using the platforms, not only for profit, but also as unpaid expression and recreation. Thus, states must balance parental rights against the interest in protecting child performers. Finally, Part IV proposes a partial-protection plan that states should adopt. Financial protection is immediately possible through Coogan Laws, but regulating the content production itself presents new and challenging questions that require states to consider the specific needs of the social media industry.

1. THE RISE OF KIDFLUENCERS

   "Samia's birth video is on YouTube, so she's pretty much been born into social media." (25) LaToya Ali, the mother of four-year-old influencer Samia, is not alone in introducing her child to the world of social media, even before birth. According to a 2010 study, more than 90% of two-year-olds in the United States have an online presence. (26) This phenomenon of parents sharing content of their children, sometimes called "sharenting," has garnered significant public concern. (27) Still, a 2015 report by Pew Research Center found that 75% of parents use social media, and 88% of all parents said they feel comfortable when content is posted about their child on social media. (28)

   The word "influencer" was added to the Merriam-Webster Dictionary in 2019 and refers to "a person who is able to generate interest in something (such as a consumer product) by posting about it on social media." (29) Though influencing is a remarkably new phenomenon, a study found that 54% of surveyed Americans between the ages of 13 and 38 would become an influencer if they could and 86% are willing to post sponsored content for money. (30)

   "Kidfluencers" are children with large followings on social media and, most importantly to this Comment, who receive compensation for posting sponsored content. (31) Twenty-five-year-old influencer Ross Smith described the rise of kidfluencers concisely: "Kids are the new social influencer.... Kids grow up and become less relevant. The sweet spot is between 2 and 4, [after which] they're not that cute." (32) Indeed, research has shown that videos featuring a child under 13-years-old receive three times as many views as those without children. (33) The social media marketing industry relies on parents dressing up their toddlers, feeding them lines that they may not understand, and advertising products that they may have never used.

   Whatever moral hesitation we have with the kidfluencer industry, the ship may well have sailed--the influencer marketing industry was worth as much as $8 billion in 2019 and is still expanding. (34) One parent told The New York Times that their child can fetch up to $45,000 for posting a sponsored YouTube video. (35) The...