Is Kidfluencing Child Labor?: How the Youngest Influencers Remain Legally Unprotected

Internet celebrity culture, also known as influencer culture, has been rapidly changing over the past decade. “Kidfluencers,” or kid influencers, are children who have large followings on social media platforms (such as YouTube and Instagram), which can come from a social media page for the child themself or the child’s family. [1]  Kidfluencers are essentially child entertainers, as they generate income through sponsored content and/or social media platforms’ monetization policies; however, they are not legally considered as such. Furthermore, kidfluencers—alongside legally-recognized child entertainers, such as child actors—are not fully protected by current child labor laws. Even though parents are “to direct the upbringing and education of children under their control” without state interference per Pierce v. Soc’y of Sisters (1925), these kidfluencers remain vulnerable to potential exploitation and abuse without legal protections. [2] Current litigation on the treatment of student athletes could provide relevant precedent for child entertainment protections because of the parallels of using one’s likeness for profit.

Child labor laws have a complicated history in the United States. In Hammer v. Dagenhart (1918), the Supreme Court upheld a district court’s decision that declared the Keating-Owens Child Labor Act (KOCLA) unconstitutional. [3] The KOCLA “prohibited the interstate shipment of goods produced by child labor,” but the Court determined that the act’s attempted regulations were at the states’ discretion as protected in the Tenth Amendment, even if the justices believed in the regulation of child labor. [4] This decision was then overturned by United States v. Darby Lumber Co. (1941), which concerned the constitutionality of thethe Fair Labor Standards Act (FLSA), passed by Congress in 1938, regulating standards such as minimum wages and child labor. [5] While a district court found the FLSA to be unconstitutional, the Supreme Court unanimously upheld the constitutionality of the FLSA in Darby, affirming Congress’s constitutional power to regulate interstate commerce, such as prohibiting certain labor practices, which cannot be altered by the states. [6] Importantly, the FLSA’s child labor clauses “protect the educational opportunities of youth and prohibit their employment in jobs that are detrimental to their health and safety,” creating work hour and occupation restrictions for workers under sixteen years of age. [7]

Despite its protections for child laborers, the FLSA has critical limits. Most notably, the FLSA only protects against “oppressive” child labor, so certain types of employment are excluded. [8] Specifically, federal child labor laws “do not apply to any child employed as an actor or performer in motion pictures or theatrical productions, or in radio or television productions,” in an exemption coined as the Shirley Temple Act. [9] Moreover, the FLSA also “exempts children by their parents from child labor regulation.” [10] Rather, the regulation, protection, and definition of who constitutes as a child entertainer is left to the discretion of an individual state, and only 32 states have child entertainment laws in place. [11] The variations in states’ child entertainment laws already complicates any legal strategy for how to best protect kidfluencers. Additionally, the definitions of who is a child entertainer and who is even a participant on social media also adds to the complexity of the situation. 

Determining if kidfluencers are actively working or if their social media presence is only a matter of play is the subject of ongoing debate. Parents tend to argue that they are the laborers behind kidfluencing through content creation and contracts, since the children alone are often too young to have their own accounts on these platforms. [12] Moreover, parents claim that they “[capture] the child’s normal activities, rather than a rehearsed performance,” revealing a general ignorance towards any intentional ‘influencing’ happening. [13] 

However, the involvement of money and corporate sponsorships confounds these claims. Even if their production appears to be play, the child garners monetary value from sponsors by using specific products in a specific way that appeals to them, adhering to deadlines and being filmed, all of which becomes commercialized. Former child star Sheila James Kuehl, who co-authored the 1999 amendment to California child entertainer laws, stated the following: “It is not play if you’re making money off it.” [14] The blurred line between work and play for these kidfluencers also make them susceptible to overbearing control, or potential exploitation and coercion, at the hands of their parents, their sponsors, and (potentially) the very social media platforms that they post their content on.

The young ages of these kidfluencers often means that their careers and, inevitably, their finances are under parental authority. However, the control that parents have over the careers of their children has fallen into complicated legal territory. The lines are thus blurred between maintaining family autonomy versus intervening against child exploitation. After the Compulsory Education Act of 1922, which required that children eight to sixteen years of age be sent to the public school of their district, was legally contested, the Supreme Court ruled in Pierce v. Society of Sisters (1925) that “legislation may not unreasonably interfere with the liberty of parents and guardians to direct the upbringing and education of children under their control.” [15] Therefore, legally, family autonomy for child care has been protected from state interference. 

When one considers the degree of parental involvement necessary for content production, it makes the regulation of kidfluencing increasingly complicated. For example, most production occurs within the family home as a “set”; the parents must film, direct, and often manage the content; many social media platforms have an age requirement that children under thirteen years of age cannot create their own accounts (though there are ways to bypass this); and children are too young to write or produce their own content. [16] Consequently, sponsors and social media platforms have little to no control over the conditions of labor for content produced by kidfluencers  in relation to content produced by other child entertainers, creating additional legal obstacles that obstruct the protection of children from potential parental exploitation. 

The extent of parental authority, and how it can be supported or challenged in connection to children, has been addressed in the Supreme Court through the Fourteenth Amendment. In Meyer v. Nebraska (1923), the Supreme Court ruled that the Fourteenth Amendment protects an individual’s liberty to “marry, establish a home and bring up children… as essential to the orderly pursuit of happiness by free men.” [17] However, though the Fourteenth Amendment has been used to defend parental authority, it has also been used to justify state involvement in the family sphere. In Prince v. Massachusetts (1944), Sarah Prince was convicted of violating Massachusetts child labor laws for letting her child preach and sell religious pamphlets, but she argued that Massachustetts state law breached the Fourteenth Amendment’s guarantee of a freedom of religion and equal protection of the laws. [18] The Supreme Court’s ruling acknowledged that there are levels to family life in which the state cannot interfere, but parental authority is not above state limitations. The state, serving as parens patriae [‘parent of the nation’], has the power to restrict parental control, including, but not limited to, the regulation of child labor. [19] 

Therefore, there is substantial legal precedent in limiting state regulation of parental authority and allowing state interference with family affairs. On one hand, parents of kidfluencers could be protected given that production is conducted with parental oversight and considered self-expression as it was held in Meyer and Society of Sisters, especially if the social media activity is unpaid. On the other hand, if the social media activity proves to be harmful to the child, the precedent from Prince v. Massachusetts specifically overrides parental authority concerning harm and child labor. Even leaving the regulation solely to the states could result in unique problems, such as parents producing content within state jurisdictions with less strict regulations, and parents claiming accountability for income and content management.

Despite differing court precedent on parental authority, Coogan Laws are an example of protective measures for child actors that hold parents and employers accountable to the financial responsibilities behind their child’s income. They currently do not apply to kidfluencers, but are being considered for them by lawmakers. [20] Currently, Coogan Laws refer to “the state requirement that the parent or guardian of the child actor set up a blocked trust account for the child, into which 15% of the minor’s acting wages are deposited until the child turns 18 years old.” [21] Until 1999, the accounts required court approval. However, requirements were substantially amended so that there were no court approval requirements and sole property rights for all of the child’s earnings were made from a contract, requiring “entertainment employers to receive the written consent of the state Labor Commissioner to employ a minor under sixteen and to deposit fifteen of the child’s gross earnings into a blocked trust.” [22] Additionally, if the parents do not set up the account, the employer will send the earnings to the Coogan Fund of the state; the entertainer gains access once they are eighteen. [23] Coogan Laws, however, are limited by state regulation, as they are only required in California, New York, Illinois, Louisiana, and New Mexico. [24] In 2018, California Assemblymember Kansen Chu proposed a bill that would have expanded protections that currently apply to child actors to include social media stars as well but these protections were removed from the final California state law. [25] Though these laws cannot prevent exploitation in the form of underpayment, they can ensure that the child receives some compensation for their labor later on in life.

As protections for kidfluencers is an evolving topic, there is very limited litigation on what legal responsibilities that parents and institutions—i.e., social media platforms such as YouTube—have towards them. However, despite these limitations, efforts to expand protections for kidfluencers can find unexpected support from recent litigation surrounding the compensation of student athletes from their respective academic institutions. Veena Dubal, a law professor at University of California, Hastings specializing in the employment law and the gig economy fields, claims, 

You could argue that YouTube is the joint employer of the child…YouTube controls what the child can and cannot do. They control the dissemination of the money. They would very likely be considered joint employers under California wage laws and child labor laws. [26] 

In this context, the kidfluencers’ social media platforms and parents/guardians serve a similar role to the NCAA and college administrations: they both control the production of content and the distribution of earnings, if the participants receive the earnings at all. 

This parallel is especially important given that the NCAA’s own rules and regulations toward compensation of student athletes were successfully challenged in NCAA v. Alston (2021). This case specifically centers the rules of the NCAA toward student compensation in relation to antitrust laws, but is still relevant to the treatment of kidfluencers. Prior to NCAA v. Alston, the Supreme Court ruled that in NCAA V. Board of Regents of the University of Oklahoma (1984) that the television plans that the NCAA had for broadcasting college football games, which restricted all control to college football game broadcasts to them, violated antitrust laws within the Sherman Act. [27]  This case also maintained that the “amateur” status of the college athletes—a distinguishing factor between college athletics and professional sports—held them to a different, lower standard compared to other antitrust cases. [28] The NCAA has used this court ruling to argue in favor of their education-related compensation restrictions, claiming that their restrictions maintained their amateur and thus unique status. This amateur nature, they argue, was essential for competition and purity of intercollegiate athletics. However, Division 1 college football and basketball athletes argued that their restrictions on education related benefits violated antitrust laws. [29] The district court, the US Court of Appeals for the Ninth Circuit, and the Supreme Court all affirmed that the NCAA violated federal antitrust laws by restricting certain academic-related benefits, such as “computers, science equipment, musical instruments.” [30]

NCAA v. Alston pertains to benefits concerning academics because other reasons for compensation were not directly presented in the case. However, the majority ruling suggested that those restrictions on benefits concerning academics could be challenged with the same logic that led to this decision. [31] If one considers universities to be analogous to caretakers or the platforms that present kidfluencer content, then the kidfluencers can also be considered entertainers that generate large sums for parents, sponsors, and the platforms without compensation. The wealth of the NCAA, sports conferences, schools, facilities, and even coaches have grown significantly and disproportionately compared to the student-athletes, who they capitalize upon with the growth of television rights deals and other endorsements. The manner in which they profit shares striking similarities with the way that kidfluencer parents, sponsors, and platforms do the same. [32] 

Another limitation of the NCAA v. Alston decision was that it did not directly address if these student-athletes could gain earnings from their names and likenesses, a significant problem that also concerns kidfluencers as well, given their highly-valued corporate sponsorships. However, the NCAA voted in favor of an interim policy allowing the monetization of student-athletes’ name, image, and likeness soon after the Supreme Court’s decision. [33] Jeffrey L. Kessler, one of the lawyers for Shawne Alston and the other student-athletes involved, argued that the Supreme Court’s decision could significantly change the lives of these student-athletes, “especially those who never go on to play professionally.” [34] Similarly, instating financial protections for kidfluencers can make a difference in protecting these young entertainers, even if they choose to leave entertainment or social media once they are old enough to disassociate from the industry.

The speed at which internet culture has evolved has created room for more weaknesses in protecting its youngest and usually most vulnerable audience members and participants: children. As social media participants, kidfluencers remain especially at risk due to the lack of child labor laws and regulations between them and the internet. United States v. Darby upheld sweeping child labor laws from the FLSA. However, factors such as a limited definition of “oppressive” labor and exemptions for child entertainers leave legal gaps in protecting kidfluencers from exploitation and abuse from their parents, sponsors, and platforms. Even if kidfluencing resembles play in terms of content, the involvement of money and sponsorships turns it into labor. Parents hold significant power over kidfluencers as they control content, recording, and the finances of their children; this control could lead to higher risks of their children being exploited. Since platforms and sponsors are not directly involved in the production process, they have not been legally liable for these children, despite capitalizing off their successes as well. There are some legal financial protections for child entertainers, but they are limited by states, and are only for “formal” child entertainers, such as child actors. Prior to NCAA V. Alston, student athletes faced a similar form of exploitation with their likeness being used, namely by coaches and collegiate institutions, without any form of compensation. However, their recent victory against the N.C.A.A. and their exploitative practices could be a useful model legal strategy in the protection of rights for kidfluencers. 

Edited by Cole Tom

Sources:

[1] Marina A. Masterson, “When Play Becomes Work: Child Labor Laws in the Era of “Kidfluencers”,” 169 University of Pennsylvania Law Review 2, (2021). 

[2] Pierce v. Soc'y of Sisters - 268 U.S. 510, 45 S. Ct. 571 (1925), LexisNexis, online at https://www.lexisnexis.com/community/casebrief/p/casebrief-pierce-v-soc-y-of-sisters (visited February 27, 2022).

[3] Hammer v. Dagenhart, Oyez, online at https://www.oyez.org/cases/1900-1940/247us251  (visited February 26, 2022).

[4] Id; Hammer v. Dagenhart, LexisNexis, online at https://www.lexisnexis.com/community/casebrief/p/casebrief-hammer-v-dagenhart

(visited February 26, 2022).

[5] Hammer v. Dagenhart, Oyez, online at https://www.oyez.org/cases/1900-1940/247us251  (visited February 26, 2022); Hammer v. Dagenhart, LexisNexis, online at https://www.lexisnexis.com/community/casebrief/p/casebrief-hammer-v-dagenhart

(visited February 26, 2022).

[6] United States v. Darby - 312 U.S. 100, 61 S. Ct. 451 (1941), LexisNexis, online at https://www.lexisnexis.com/community/casebrief/p/casebrief-united-states-v-darby (visited February 26, 2022); United States v. Darby, Oyez, online at https://www.oyez.org/cases/1940-1955/312us100 (visited February 26, 2022).

[7] Youth and Labor, U.S. Department of Labor, online at https://www.dol.gov/general/topic/youthlabor (visited February 26, 2022)

[8] Marina A. Masterson, “When Play Becomes Work: Child Labor Laws in the Era of “Kidfluencers”,” 169 University of Pennsylvania Law Review 2, (2021). 

[9] Id.

[10] Id.

[11] Child Entertainment Laws As of January 1, 2022, U.S. Department of Labor, online at

 https://www.dol.gov/agencies/whd/state/child-labor/entertainment (visited February 26, 2022); Neyza Guzman, J.D, "The Children of YouTube: How an Entertainment Industry Goes Around Child Labor Laws," 8 Child and Family Law Journal 1, (2020).

[12] Marina A. Masterson, “When Play Becomes Work: Child Labor Laws in the Era of “Kidfluencers”,” 169 University of Pennsylvania Law Review 2, (2021). 

[13] Id.

[14]​​ Julia Carrie Wong, 'It's not play if you're making money': how Instagram and YouTube disrupted child labor laws, The Guardian (April 24, 2019), online at https://www.theguardian.com/media/2019/apr/24/its-not-play-if-youre-making-money-how-instagram-and-youtube-disrupted-child-labor-laws (visited February 23, 2022).

[15] Marina A.Masterson, “When Play Becomes Work: Child Labor Laws in the Era of 

“Kidfluencers”,” 169 University of Pennsylvania Law Review 2, (2021); Pierce v. Soc'y of Sisters - 268 U.S. 510, 45 S. Ct. 571 (1925), LexisNexis, online at https://www.lexisnexis.com/community/casebrief/p/casebrief-pierce-v-soc-y-of-sisters (visited February 27, 2022) 

[16] Pierce v. Society of Sisters, Oyez, online at https://www.oyez.org/cases/1900-1940/268us510 (visited February 27, 2022)

[17] MEYER v. STATE OF NEBRASKA., Law.Cornell, online at https://www.law.cornell.edu/supremecourt/text/262/390 (visited February 27, 2022).

[18] Prince v. Massachusetts - 321 U.S. 158, 64 S. Ct. 438 (1944), LexisNexis, online at https://www.lexisnexis.com/community/casebrief/p/casebrief-prince-v-massachusetts (visited February 27, 2022).

[19] Id. 

[20] Marina A. Masterson, “When Play Becomes Work: Child Labor Laws in the Era of “Kidfluencers”,” 169 University of Pennsylvania Law Review 2, (2021). 

[21] Id.

[22] Id.

[23] Id.

[24] Coogan Law, SAG-AFTRA, online at https://www.sagaftra.org/membership-benefits/young-performers/coogan-law (visited February 27, 2022)

[25] Julia Carrie Wong, 'It's not play if you're making money': how Instagram and YouTube disrupted child labor laws, The Guardian (April 24, 2019), online at https://www.theguardian.com/media/2019/apr/24/its-not-play-if-youre-making-money-how-instagram-and-youtube-disrupted-child-labor-laws (visited February 23, 2022); Marina A. Masterson, “When Play Becomes Work: Child Labor Laws in the Era of “Kidfluencers”,” 169 University of Pennsylvania Law Review 2, (2021). 

[26] Julia Carrie Wong, 'It's not play if you're making money': how Instagram and YouTube disrupted child labor laws, The Guardian (April 24, 2019), online at https://www.theguardian.com/media/2019/apr/24/its-not-play-if-youre-making-money-how-instagram-and-youtube-disrupted-child-labor-laws (visited February 23, 2022).

[27] National Collegiate Athletic Association v. Board of Regents of the University of Oklahoma, Oyez, online at https://www.oyez.org/cases/1983/83-271 (visited March 5, 2022); National Collegiate Athletic Association v. Alston, Oyez, online at https://www.oyez.org/cases/2020/20-512 (visited March 5, 2022)

[28] Id.

[29] Id.

[30] Id.

[31] Adam Liptak and Alan Blinder, Supreme Court Backs Payments to Student-Athletes in N.C.A.A. Case, The New York Times (June 21, 2021), online at https://www.nytimes.com/2021/06/21/us/supreme-court-ncaa-student-athletes.html (visited March 5, 2022)

[32] Id.

[33] Taking Action: Name, Image, Likeness, NCAA, online at https://www.ncaa.org/sports/2021/2/8/about-taking-action.aspx (visited March 14, 2022)

[34] Adam Liptak and Alan Blinder, Supreme Court Backs Payments to Student-Athletes in N.C.A.A. Case, The New York Times (June 21, 2021), online at https://www.nytimes.com/2021/06/21/us/supreme-court-ncaa-student-athletes.html (visited March 5, 2022)