By: Margaret Arabpour
The late 2000’s saw the introduction of the ‘mommy blogger,’ the first iteration of a parent using their experience as a parent and sharing the stories of their children’s lives to generate an income online. As the internet shifted towards YouTube, and eventually Instagram, family vloggers emerged, creating a new industry worth millions of dollars. These parents, by documenting their lives, sharing invasive and embarrassing Q+A’s about their children, and posting sponsored content, are able to quit their day jobs and make ‘influencing’ a full time gig. Unlike ‘kidfluencer’ channels, where the child serves as the narrator and is viewed as the owner of the account, children featured in family channels and parent accounts are used as props or subjects. The rise of both types of accounts drew heavy criticism as people began examining the safety and ethical questions evoked by parents using their children for internet fame, money, and free stuff – all while creating a permanent digital footprint their child cannot undo.
Critics have long called for a redefinition of California’s Coogan Act to include child social media stars like Ryan Kaji of the YouTube channel, “Ryan’s World.” The Coogan Act, named after the child star Jackie Coogan, provides various protections to children employed in the entertainment industry. One of the most important protections is the establishment of a Coogan trust account – a trust managed by the parents of a minor child in which a minimum of fifteen percent of gross income earned by a child entertainer is placed until the child turns eighteen. What really distinguishes child ‘kidfluencers’ from the children used in family and parenting accounts is that the children in family and parenting accounts cannot seek protections under the Coogan Act and do not have access to any other legal protections to prevent financial exploitation by their parents. The rise of TikTok and mommy bloggers, like Maia Knight and Laura Love, who use TikTok’s short video platform to share their lives as moms, highlights the dire need for updates to entertainment laws to prevent children on social media from being financially exploited by their parents.
Current social media user monetization policies fail to protect the financial interests of the children in the videos, especially for users that are part of Youtube’s AdSense Program and the TikTok’s Creator Fund. The TikTok Creator Fund is a 200 million dollar monetization program that users who are eighteen and older can opt into if they meet certain criteria. According to TikTok, users in the Creator Fund are paid based on a unique algorithm that considers factors like view count and engagement, which will vary naturally and over time. While the TikTok account holder must be eighteen or older to apply, there is nothing in the Creator Fund’s Terms of Service that restricts accounts belonging to adults that often contain themes, stories, images, or videos of their young children from joining the Creator Fund.Thus, videos featuring a child can generate income for the account owner based on the contract between the account owner and TikTok.
California laws currently do not offer any financial legal protections to minors that are subjects of an account in the Creator Fund or another view-based monetization option. It is also not firmly established that existing California laws protect minors that are not parties to social media sponsorship agreements where the owner of the account receives some form of monetary compensation in exchange for content that includes or alludes to their position as a parent as a marketing tactic. This leaves children in a vulnerable place where their experiences, image, and identity may be used for profit without ever seeing a penny of it themselves.
Section 6750(a) of the Coogan Act restricts the protections and duties prescribed in § 6750-53 to “contracts entered into between an unemancipated minor and a third party on or after January 1, 2000” that fall under one or more types of categories from an enumerated list. The spirit of the law, which is to protect child entertainers from financial abuse, suggests that child social media influencers, like child actors, should be protected, but the statute’s language leaves room for avoidance and abuse.
However, the Coogan Act, as written, cannot apply to videos featuring children posted by parent-owned accounts because § 6750 restricts Coogan trusts and duties to contracts between a minor and other party. Because of the way TikTokers, like Maia Knight and Laura Love, own and manage their TikTok accounts while featuring their children, instead of managing their child’s account, there is no contract formed between TikTok and the minor. However, the role that these children are playing in this type of content fits squarely within the listed types of contracts between a minor and other party that the Coogan Act covers, including contracts for the use of a person’s likeness, story, or experiences in the minor’s life. This problem can be solved by enacting a law that mirror’s the Coogan Act’s financial protections and requires a portion of income derived from monetized social media accounts that substantially rely on using a minor’s presence, likeness, story of, or experiences be placed in a Coogan style trust until the child turns eighteen.
For children of family vloggers, their childhood experiences are no longer relegated to an embarrassing scrapbook of childhood photos and stories that live at mom’s house — they now exist permanently as part of a digital footprint the entire world can see. These young children are not able to fully rationalize and understand the long-term consequences of having their toddler tantrums or invasive breakdowns about their bodies and medical histories available on the internet for free commentary, viewing, and distribution. They are also unable to give consent for it to be posted. There are many other facets of both statutory law and common law that recognize children have a lower capacity to understand certain consequences, and therefore, are not able to consent. The responsibility to make this decision, therefore, lies with the parents, who have a financial carrot dangling in front of them to post more, share more, and exploit more. This pattern was seen before with child actors like Jackie Coogan and it prompted the Coogan Act to be passed in the first place.
It is unrealistic and extreme to place a blanket ban on creators from profiting using the Creator Fund or other streams of monetization if such content contains minors. It is also naïve to think that this would solve the current problems with privacy and financial exploitation on social media. Parents will get savvier and social media will continue to evolve. Therefore, California and other states should enact laws similar in spirit to that of California’s Coogan Act, requiring a portion of income derived from monetized social media content featuring a child—even if the child is not a named party in the monetization or sponsorship agreement—to be set aside in a Coogan-style trust account until the child turns eighteen.
 See Kathryn Jezer-Morton, Did Moms Exist Before Social Media?, The New York Times (Apr. 16, 2020)https://www.nytimes.com/2020/04/16/parenting/mommy-influencers.html (explaining the cultural shifts in how motherhood is shared on the internet from 2005 through 2019).
 See Rachel Dunphy, The Dark Side of YouTube Family Vlogging, Intelligencer (Apr. 17, 2017)https://nymag.com/intelligencer/2017/04/youtube-family-vloggings-dark-side.html (“the top family vlogs bring in half a billion views a week, and millions in revenue”).
 See, e.g. This is How We Bingham, Why I Quit the Best Job I’ve Ever Had, YouTube (May 21, 2018) https://www.youtube.com/watch?v=5TK8vlsXnQM (explaining that he was quitting his full-time job to pursue YouTube and vlog daily with his wife and four young children); Maia Knight (@maiaknight), TikTok (Feb. 11, 2022), https://vm.tiktok.com/TTPdBGjD2F/ (participating in a viral TikTok trend referencing her making money from showing her infant twins in TikTok videos); Savannah LaBrant (@savv.labrant), TikTok (Nov. 20, 2021) https://vm.tiktok.com/TTPdBGXg1g/ (using her oldest daughter’s reaction to the news her mom was having another baby for views).
 Compare Ryan Kaji, Ryan’s World, YouTube (last visited Feb. 18, 2022) https://www.youtube.com/c/RyanToysReview/videos (starring ten year old Ryan Kaji as the main character and owner of the YouTube account, Ryan’s World, under management or supervision by an adult); with Laura Love (@lauralovetwo),TikTok (last visited Feb. 18, 2022) https://www.tiktok.com/@lauralovetwo?lang=en (focusing on a mother’s parenting experiences and advice through videos featuring her two young children as examples).
 See Kira Wang, Televising Child Abuse: The Rise of the Family Vlogger, 34th Street (Nov. 8, 2021) https://www.34st.com/article/2021/11/influencer-youtube-family-vlog-mommy-bloggers-child-abuse-exploitation-neglect (calling out the questionable ethics of Youtuber families like 8 Passengers, who share videos about their daughter’s first period and conversations with their young and adolescent children about sex and derive income from it).
 See Kaji supra note 4; Harper Lambert, Why Child Social Media Starts Need a Coogan Law to Protect Them from Parents, The Hollywood Reporter (Aug. 20, 2019) https://www.hollywoodreporter.com/business/digital/why-child-social-media-stars-need-a-coogan-law-protect-parents-1230968/ (explaining how parents are using their children’s social media presence to financially support the entire family in the same manner child actors, like Jackie Coogan, were used for their work in television and movie industries).
 Id.; Cal. Fam. Code § 6752 (2022).
 See generally Maia Knight (@maiaknight), TikTok (last visited Feb. 18, 2022) https://www.tiktok.com/@maiaknight; Savannah LaBrant (@savv.labrant), TikTok (last visited Feb. 18, 2022) https://firstname.lastname@example.org; Laura Love (@lauralovetwo), TikTok (last visited Feb. 18, 2022) https://www.tiktok.com/@lauralovetwo.
 See e.g. TikTok Creator Fund: Your Questions Answered, TikTok (last visited Feb. 18, 2022) https://newsroom.tiktok.com/en-gb/tiktok-creator-fund-your-questions-answered (noting there is no restriction on content involving children from generating income using the Creator Fund as long as the content fits within TikTok’s regular Terms of Service).
 Id. (listing that users eighteen years or older and based in the United States are eligible if they have at least 10 thousand followers and have at least 100 thousand video views in the previous thirty-day period).
 Id.; What is Social Media Engagement and What Does it Mean?, REQ, (March, 7, 2016) (defining social media engagement as any interaction a ‘fan’ has with a post on social media, including sharing, liking, or commenting).
 TikTok Creator Fund: Your Questions Answered, TikTok (last visited Feb. 18, 2022) https://newsroom.tiktok.com/en-gb/tiktok-creator-fund-your-questions-answered.
 See Terms of Service, TikTok (last visited Feb. 18, 2022) https://www.tiktok.com/legal/terms-of-service?lang=en (acknowledging TikTok is entering in a contract with those who access, create, and use its platform, which are not necessarily the individuals appearing in the content); See Jay Greene, TikTok Proposes to Add New U.S. Headquarters and 20,000 Jobs to Win Over Trump, The Washington Post (Sep. 14, 2020) https://www.washingtonpost.com/technology/2020/09/14/tiktok-us-headquarters-oracle/ (noting that TikTok is headquartered in Culver City, California).
 Cal. Fam. Code § 6750 (2022). See e.g. Aspyn Ovard (@aspynovard), TikTok (Jan. 30, 2022), https://vm.tiktok.com/TTPdBsTj2w/ (emphasizing her role as a mom and showing her two young children during the majority of a sponsored TikTok for a treadmill).
 See § 6750 (a) (requiring there be contract for services between an unemancipated minor and third party to trigger the duties imposed by the Coogan Act).
 See generally Marina A. Masterson, Comment, When Play Becomes Work: Child Labor Laws in the Era of “Kidfluencers”, 169 U. Pa. L. Rev. 577 (2020) (addressing where “Kidfluencers” fit in existing child labor and child entertainer laws).
 § 6750 (a).
 § 6750 (a)(2) (including “[A] contract pursuant to which a minor agrees to purchase, or otherwise secure, sell, lease, license, or otherwise dispose of literary, musical, or dramatic properties, or use of a person’s likeness, voice recording, performance, or story of or incidents in the person’s life, either tangible or intangible, or any rights therein for use in motion pictures, television, the production of sound recordings in any format now known or hereafter devised, the legitimate or living stage, or otherwise in the entertainment field”).
 See e.g. Savannah LaBrant (@savv.labrant), TikTok (May 23, 2021) https://email@example.com/video/6965601240814226693 (showing her nine-month old son in the bathtub in a video that garnered over 1.2 million “likes” and over ten thousand “shares”).
 See Terms of Service, TikTok (last visited Feb. 18, 2022) https://www.tiktok.com/legal/terms-of-service?lang=en (“By registering, accessing or using the Services, you agree…that you are 13 years old or over”).
 See e.g. Branden Bingham, This is How We Bingham, YouTube (last visited Feb. 18, 2022) https://www.youtube.com/c/thisishowwebingham/videos?view=0&sort=p&flow=grid (noting the most viral videos on the channel are featuring their children with clickbait titles and garnered millions of views each).
 See Roger Armbrust, Jackie’s Legacy: Proponents of Coogan Law revisions aim at extending protection of children performers to all cases and all states, Backstage (last updated Nov. 4, 2019) https://www.backstage.com/magazine/article/jackies-legacy-proponents-coogan-law-revisions-aim-extending-20198/ (explaining child actor, Jackie Coogan, expected to have four million dollars in a trust from his earnings as a successful child actor in the 1920’s, but his parents spent nearly all of it without his knowledge or consent).