Margaret Severson*
I. Introduction
Ryan Kaji was just three years old when his mother posted a video of him playing with toys on YouTube.[1] Now, almost eight years later, that video has 53 million views,[2] Ryan has over 34 million subscribers on his YouTube channel “Ryan’s World,”[3] and the Kaji family earned over 27 million dollars in 2021 alone from advertisements on Ryan’s channel and sales from merchandise and a proprietary line of toys.[4]
While Ryan is one of the Internet’s most well-known, and well-paid, child social media stars, he is far from the only child online to achieve such success.[5] Children who have large social media followings with accounts run by their parent or guardian are colloquially called “kidfluencers,” and successful kidfluencers, just like child actors, can easily become victims of financial exploitation by their parents, especially when revenue from the child’s content becomes a family’s main source of income.[6] Despite the risk, child labor laws in the United States provide kidfluencers very little protection.[7]
II. The Existing Child Labor Law Scheme
Federal child labor law generally prohibits employing minors under the age of fourteen in nonagricultural occupations and restricts the hours and types of work that can be performed by minors under the age of sixteen.[8] But unfortunately, the entertainment industry is exempt from this federal regime.[9]
Without a federal law in place, protecting the legal rights of children working in the entertainment industry is delegated to the states. California was the first state to act to protect these rights. In 1939, the state passed the Coogan Law, named for child actor Jackie Coogan, which requires fifteen percent of a child’s earnings to be deposited into a trust account (often called a Coogan Account) that they will gain access to at the age of eighteen.[10] The Coogan Law continues to offer protection to child actors in California, and New York, Illinois, Louisiana, and New Mexico have enacted similar laws.[11]
In 2018, California tried and failed to extend the Coogan Law to include kidfluencers, and in general, governments at all levels are reluctant to make laws that might infringe on parental autonomy.[12] In the 1920s, in Meyer v. Nebraska and Pierce v. Society of Sisters, the Supreme Court recognized parents’ rights to exercise control over their children’s upbringing without interference from the government.[13] In Meyer, the Supreme Court struck down a law restricting foreign-language education in public schools,[14] and then held in Pierce that requiring children to attend public school was unconstitutional.[15] In both cases, the Supreme Court relied on the Fourteenth Amendment, determining that the Amendment guarantees parents the right to establish a home and raise children how they see fit.[16]
However, the Supreme Court has limited parental authority when it affects children’s welfare.[17] In Prince v. Commonwealth of Massachusetts, the Court stated that “the family itself is not beyond regulation in the public interest” and the state may act to protect a child’s well-being by “requiring school attendance, regulating or prohibiting the child’s labor, and in many other ways.”[18] Therefore, states can and should expand their current laws or institute new laws to protect kidfluencers.
III. Expanding the Law to Protect Kidfluencers
In order to ensure that kidfluencers receive the same protection given to their child actor counterparts, California, and other states with Coogan Laws, should expand their laws to include kidfluencers, requiring a portion of kidfluencers’ income to be set aside in a trust account until the child turns eighteen. Furthermore, even states without a Coogan Law protecting child actors should enact a kidfluencer protection law, since kidfluencing can happen anywhere and is not necessarily tied to the classic entertainment hubs of California and New York. Recently, France enacted a kidfluencer law that provides a workable framework for this kind of law.[19]
France’s updated kidfluencer law broadened the definition of child entertainers to include children who “work for an employer who makes audiovisual recordings of minors under the age of sixteen with intent to distribute the recordings on social media sites.”[20] Under the law, parents of kidfluencers are required to obtain government authorization before the child engages in influencing work that amounts to a “labor relation,” an arrangement that resembles an employee-employer relationship.[21] Similar to California’s Coogan Law, the French law also requires parents and guardians to set aside a portion of earnings into a special escrow account that is protected until the child reaches the age of majority or is otherwise emancipated.[22] Overall, the French law is a promising development and offers a helpful framework for states to follow when implementing a new law or expanding their Coogan Law to protect kidfluencers.
Although a parent monetizing online content of their child might be harmless in some situations, the risk of exploitation is present. California, and other states with a Coogan Law, should expand their laws to offer the same protections to kidfluencers, and because influencing is not as state-specific as other forms of child entertainment, even states without a Coogan Law should implement safeguards to protect kidfluencers.
*Margaret Severson, J.D. Candidate, University of St. Thomas School of Law Class of 2023, Senior Editor of the St. Thomas Law Journal.
[1] John Goodwin, Ryan’s World: How a Kid in Hawaii Became a YouTube Millionaire, CBS News (Apr. 24, 2022, 9:24 AM), https://www.cbsnews.com/news/ryans-world-how-a-kid-in-hawaii-became-a-youtube-millionaire.
[2] Ryan’s World, Kid Playing with Toys Lego Duplo Number Train, YouTube (Mar. 16, 2015), https://www.youtube.com/watch?v=jVwSJ9q3kOc&ab_channel=Ryan%27sWorld.
[3] Ryan’s World, YouTube, https://www.youtube.com/@RyansWorld (last visited Mar. 23, 2022).
[4] Ryan Kaji, Forbes, https://www.forbes.com/profile/ryan-kaji/?sh=7ea923046f3c (last visited Feb. 24, 2022).
[5] See, e.g., Kid Influencers: Few Rules, Big Money, CBS News (Aug. 23, 2019), https://www.youtube.com/watch?v=8XkaSouYTbg&ab_channel=CBSNews; Sapna Maheshwari, Online and Earnings Thousands, at Age 4: Meet the Kidfluencers, N.Y. Times (Mar. 1, 2019), https://www.nytimes.com/2019/03/01/business/media/social-media-influencers-kids.html.
[6] See, e.g., supra note 5; Taylor Mooney, Companies Make Millions Off Kid Influencers, and the Law Hasn’t Kept Up, CBS News (Aug. 26, 2019, 6:19 AM), https://www.cbsnews.com/news/kid-influencers-companies-make-millions-law-hasnt-kept-up-cbsn-originals/; Allie Volpe, How Parents of Child Influencers Package Their Kids’ Lives for Instagram, The Atlantic (Feb. 28, 2019), https://www.theatlantic.com/family/archive/2019/02/inside-lives-child-instagram-influencers/583675/.
[7] See, e.g., supra note 6; Marina A. Masterson, Comment, When Play Becomes Work: Child Labor Laws in the Era of “Kidfluencers,” 169 U. Pa. L. Rev. 577 (2021).
[8] Fair Labor Standards Act of 1938, 29 U.S.C. §§ 212(c), 213(c).
[9] Id. § 213(c).
[10] Cal. Fam. Code § 6752; see also Coogan Law, SAG-AFTRA, https://www.sagaftra.org/membership-benefits/young-performers/coogan-law (last visited Feb. 24, 2022).
[11] Coogan Law, supra note 10.
[12] Julia Carrie Wong, ‘It’s Not Play If You’re Making Money’: How Instagram and YouTube Disrupted Child Labor Laws, The Guardian (Apr. 24, 2019, 1:00 AM), https://www.theguardian.com/media/2019/apr/24/its-not-play-if-youre-making-money-how-instagram-and-youtube-disrupted-child-labor-laws; Joan Reardon, Note, New Kidfluencers on the Block: The Need to Update California’s Coogan Law to Ensure Adequate Protection for Child Influencers, 73 Case W. Rsrv. L. Rev. 165, 185 (2022).
[13] Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925).
[14] Meyer, 262 U.S. at 403.
[15] Pierce, 268 U.S. at 534–35.
[16] Id.; Meyer, 262 U.S. at 403.
[17] Prince v. Massachusetts, 321 U.S. 158 (1944).
[18] Id. at 166 (emphasis added).
[19] Loi 2020-1266 du 19 octobre 2020 visant à encadrer l’exploitation commerciale de l’image d’enfants de moins de seize ans sur les plateformes en ligne [Law 2020-1266 of October 19, 2020 Aimed at Regulating the Commercial Exploitation of the Image of Children Under the Age of Sixteen on Online Platforms], Journal Officiel de la République Française [J.O.] [Official Gazette of France], Oct. 20, 2020, p. 7.
[20] Id.
[21] Id.
[22] Id.
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