Baby’s First Brand Deal – Californian child labor law and the financial exploitation of “kidfluencers”

On today’s internet, YouTube, TikTok, and Instagram are replete with family vlogging channels, parent-run children’s accounts, and mommy-blogger pages obsessively posting updates on their children seemingly from the first positive pregnancy test. While this content racks up millions of likes and views and commensurate financial success through brand partnerships, AdSense, and buckets of PR, the law remains worryingly underdeveloped on the issue of the starring children’s entitlement to the fruits of their labor. The phenomenon of so-called “kidfluencers” – children with large social media followings – thus gives rise to the research question “to what extent does existing Californian law on child entertainers in traditional media protect kidfluencers from financial exploitation?” 

Case Study – The LaBRANTS

An interesting specimen of kidfluencers for the purposes of this article are children whose parents start out as influencers themselves, fold their very young children into their content, and then create offshoot accounts for them as they mature. Such kidfluencers can callously be viewed as “human brand extensions of their parents.” A prime example of this species of kidfluencer can be observed in the LaBrant family vlogging channel. The channel has its origins in Savannah (then) Soutas’ rise to fame on Musical.ly by posting videos of herself and her young daughter Everleigh on the platform, and Cole LaBrant’s popularity on Vine. Since the pair’s wedding in 2017, the LaBrants have vlogged the birth of their son, the birth of their daughter, and countless family challenges and activities headlining their very young children. In a particularly controversial now deleted video the couple reduced their eldest daughter Everleigh to tears with a prank that they would be giving the family dog away. Everleigh has her own YouTube channel created in April 2016, in the blurb of which the 11-year-old (or more likely her parents or management) urges her audience to follow her on Instagram and to subscribe to her family’s channel, as well as a joint channel with her father created in March 2023.

Throughout their family vlogging career, the LaBrants have monetized their children in a variety of ways using influencer marketing. Influencer marketing is a form of digital word-of-mouth marketing, which involves the promotion of goods or services to consumers through a channel of communication that the company does not directly control and with whom the consumer has a (para)social relationship that encourages them to trust their messaging. One form of influencer marketing is affiliate marketing, through which influencers generate income based on the click-through rate of their customized URLs on the basis of a contract with an advertiser. Receiving PR  explicitly or implicitly in return for promotion of the product, endorsement of goods or services in line with brand indications, and the production of merchandise independently or in collaboration with brands are equally common forms of influencer marketing. Beyond direct promotion of products, influencers also profit off of monetization through programs like Google’s AdSense. The LaBrants’ family vlogging channel is replete with videos about their children whose descriptions are filled with affiliate links (including, absurdly, a video in which Cole baptizes Everleigh with links to trampolines and tree houses in the description). Similarly, their individual Instagram feeds and stories feature affiliate marketing for exercise clothing, advertisements for their merchandise, and showcases of PR they have received, with such posts typically featuring Everleigh front and center. It goes without saying that almost every video on their YouTube channels is monetized, from then-6-year-old Everleigh’s morning routine, to the vlog of the older children meeting their new baby sister.

If available analytics on comparable child-centered and family vlogging channels are to be trusted, the LaBrants have been turning a hefty profit thanks to their children’s participation in their content. In 2021, two of the top 10 YouTube earners (Nastya and Ryan Kaji) were accounts headlining children, raking in 28 and 27 million dollars respectively off of ad-revenue on YouTube alone. Family channels can generate anything from 2000 to 38,000 dollars every month also only in ad-revenue, and 150,000 dollars per month through three-four brand deals. In model Nina Gonthier’s case, by starting an Instagram account for her son Jerome, she was able to levy her already existing follower base and brand relationships into baby-related PR and brand deals for her son bringing in 20,000 dollars per year. There is no doubt that kidfluencing in its many forms can be very lucrative, but because ownership over money generated by one’s children remains a more or less unquestioned “natural privilege of parenthood,” the issue of financial exploitation is inextricably intertwined with this social media phenomenon.

Federal Law – FLSA

Federal law is silent on children’s rights to the income they generate. The FLSA’s so-called “Shirley Temple clause” precludes the federal regulation of child labor in motion pictures or theatrical, radio, or television productions on the basis that such work is a way to develop talents and contribute to public life rather than exploitative, oppressive labor. As such, regulation of child labor in traditional and new media is left to State discretion, giving rise to a deeply fragmented regulatory landscape and risks of forum shopping by would-be employers or greedy parents. As of 2023, 18 States still have no protections for children in the entertainment industry, and only Illinois has enacted any legislation specifically catering to the needs of kidfluencers (see below for more detail).

Californian Law – Coogan Trusts and Child Labor Laws

As a hub for the entertainment industry, California has relatively strict protections for child stars in traditional media. Its legislation in this field comes in the form of Coogan Laws, which jointly regulate the creation of trust accounts for child actors into which a given percentage of their income must be deposited, and the approval of work permits by the State. So-called “Coogan trusts” originate from the infamous 1938 case of Jackie Coogan, in which the former child star sued his mother and stepfather for squandering his 4 million dollar fortune (equivalent to 44-49 million dollars in 2021). Because the money had been spent completely legally by his parents, the case was eventually settled out of court for a paltry 150,000 dollars. In response to this high-profile injustice, however, California enacted “Coogan’s law” in 1939, whereby if a contract for the employment of a minor in the entertainment industry was brought before a court for approval, the court would have the discretion to set up a savings plan for the minor as well as to determine the amount of the child’s earnings to be set aside in the trust based on what it deemed to be “just and proper.” Although the law remained unchanged until its amendment in 2000 by Californian Senate Bill 1162, cracks soon began to show – its protections were only triggered when contracts were brought before a court for approval, and even if this was done there was no guarantee that the court would choose to establish a trust, let alone a trust in which an appropriate percentage of the child’s income had to be placed. By 1999, 95% of producers were opting out of court intervention, and the child stars concerned were thus left entirely without legal rights to their income and at the mercy of their parents’ good will. This risk was exacerbated for children who were subject to short-term employment contracts working on single movies or commercials rather than more long-term contracts like TV shows.

To close this regulatory gap, the State legislator enacted Senate Bill 1162 on January 1 2000, through which Coogan’s Law was amended to cover all contracts concerning the employment of child actors, regardless of whether such contracts were approved by a court. A minimum of 15% of the child’s gross earnings would have to be set aside by the minor’s employer and held in trust for the benefit of the minor. As a safeguard against unclaimed funds being forwarded to the State Controller in the absence of a Coogan trust, Senate Bill 210 of January 1 2004 provides that if the child’s parents fail to create a Coogan trust within 180 days of employment, the employer must “forward to the Actors’ Fund of America 15% of the minor’s gross earnings.” The Fund will then manage and administer the account in the manner of a typical trustee, as well as have the right to use some of the fund to aid its mission to provide programs and services for young performers (to the extent that this does not limit its ability to disburse the funds to their beneficiary).

Financial Rights For Kidfluencers

As Californian law stands, the financial protections available to children working in the traditional entertainment industry are closed to kidfluencers, despite the heightened risk of financial exploitation kidfluencers face relative to child actors. Based on SAG-AFTRA (Screen Actors Guild – American Federation of Television and Radio Artists) union rates, a typical child actor may make a base rate of 1,030 dollars for a half- or full-hour show with an added 10% for the commission due to their agent, and 3,575 dollars for a week. In stark contrast to this is the not atypical income of 15,000 dollars per post for larger accounts. Another notable difference between the 2 career paths is the level of invasiveness implied by kidfluencing. Unlike child actors whose workplaces and homes are separate from each other and who are surrounded by a mandated team of caretakers while on set (eg.studio teachers, staff to check time spent working…), a kidfluencer may find themselves constantly under the watchful gaze of a vlogging camera, working a “job [that] is never over,” and struggling with the dynamic of their parents also being their bosses. The risk for financial exploitation that already exists in traditional media is thus compounded by the unique vulnerability of kidfluencers.

In 2023, Illinois became the first State to pass legislation targeting the financial exploitation of kidfluencers. To fall within the scope of the law, at least 30% of the vlogger’s monetized video content produced within a month must contain the “likeness, name, or photograph of the minor” either visually or as the subject of oral discussion. Furthermore, the content must meet the platform’s threshold for monetization or make at least 10 cents per view. The bill imposes an obligation on vloggers to keep records on (eg.) the number of vlogs that fall within the scope of the law and the number of minutes the minor in question was featured during the reporting period, and regularly make these records available to the minor. Parents have to establish trust funds into which they deposit earnings from videos covered by the law equivalent to at least a half of the content percentage that includes the minor; a video entirely featuring a kidfluencer thus requires at least 50% of its earnings to be placed in a trust.

Notably, the bill is hamstrung when it comes to enforcement – not only does it lack a government enforcement mechanism, but it only empowers children whose rights are breached to sue their parents for failing to keep and share records of their involvement in covered content, and for failing to deposit their earnings in a trust. This is symptomatic of the difficulties of protecting kidfluencers’ financial rights online. On the one hand, the unprecedented earning model of social media makes keeping track of the required data difficult for parents, and virtually impossible for States. Chicago-based CPA Martin Kamenski told Politico that he could “almost not imagine how a content creator would comply with this” without some sort of tool to help them check whether the amount of time their child is featured in their content falls within the threshold of the law. Even well-meaning parents may struggle to comply with this law, while less well-meaning ones may take advantage of the unlikelihood of facing repercussions for non-compliance. Although this attempt to regulate the financial exploitation of kidfluencers does set up a framework to assess their relative contribution to their family’s finances (and thus, their claim to the income in question) as well as do away with parents’ arguments that their children are playing and not working and thus not entitled to any income, it highlights the remaining complexities of legislating in this field. Lawmakers inevitably run up against issues of parental autonomy and a reluctance to interfere in family life (given the fact that vlogs are often recorded at home or depict intimate family moments), which makes efficient regulation through a Coogan-esque framework more difficult than it may at first glance appear. The answer to this article’s research question concerning the effectiveness of Californian law in protecting kidfluencers is thus resoundingly negative, but Illinois’ recent attempt to legislate the issue should galvanize Californian legislators and expose further issues that must be accounted for to meaningfully protect kidfluencers from financial exploitation.