Madison White, Contributing Member 2023-2024
Intellectual Property and Computer Law Journal
I. Introduction
In 2015, Ruby Franke had six children, a vlog camera, and a dream.[1] Her YouTube channel, titled “8 Passengers,” eventually accumulated over two million subscribers and provided viewers a glimpse into Ms. Franke’s unorthodox parenting practices.[2] Ms. Franke would film herself punishing her children, including revoking the “privilege” of meals as a consequence for typical sibling antics, such as play-fighting.[3] In one instance where her fifteen-year-old son played a prank on his brother, Ms. Franke showed viewers her son’s punishment: sleeping on a beanbag for seven months.[4]
The “8 Passengers” channel arguably made viewers feel like they were “passengers” in the upbringing of Ms. Franke’s children by watching the children grow and witnessing highly personal events in their lives. These children became capital in their mother’s quest to build a parenting advice empire. Franke’s production company received $83,620 in COVID-19 Payroll Protection Program (PPP) loans, contributing to a larger public accusation that influencers and celebrities were taking advantage of the federal funds when they did not truly need the money.[5]
By 2023, Franke’s veneer of unorthodox parenting was unveiled to include nefarious underpinnings. “8 Passengers” subscribers watched Ms. Franke be a “strict” parent online, but in real life, she was an abusive one. Ruby Franke was arrested in August 2023 and charged with six counts of aggravated child abuse.[6] Ms. Franke pleaded guilty to “physical(ly) tortur(ing)” her two youngest children: her nine-year-old daughter and eleven-year-old son.[7] The counts in Ms. Franke’s plea agreement contained insidious examples of abuse, such as denying her son water for several days while forcing him to stay outside in the summer heat and binding the boy with handcuffs on his wrists and ankles.[8] The filing also states that Franke shoved her son’s head underwater and forced her daughter to run barefoot on dirt roads for long periods of time, telling her she was “evil and possessed.”[9] In February 2024, Ruby Franke was sentenced to four consecutive terms in prison, with each term carrying one to 15 years and a maximum total sentence of 30 years.[10] At her sentencing hearing, she apologized to her children, saying she “(chose) to follow counsel and guidance that has led me into a dark delusion.”[11]
While most family vloggers are not indicted on aggravated child abuse charges, the practice of posting their children’s first breaths and puberty woes has drawn public criticism.[12] Family vloggers have created a lucrative industry by monetizing the documentation of their children’s day-to-day lives.[13] These YouTube channels are a breeding ground for influencer marketing, where companies advertising products for children provide paid endorsement deals to family vloggers.[14] Additionally, content with high viewership is eligible for advertising commissions; in 2018, the highest-paid YouTube star was a seven-year-old boy who unboxed toys on his channel and raked in an estimated $21 million in pre-roll advertising revenue alone.[15]
Family vloggers present unique legal issues concerning the children whose likenesses drive profit. Child labor regulations have yet to catch up to the modern practice of documenting children’s lives online. Such regulatory loopholes present opportunities for economic exploitation and unconsented overexposure for minors who are still trying to figure out their identities in the real world, separate from their parentally contrived digital footprints.
II. Background
The body of law surrounding child workers does not account for the novel “kidfluencing” industry. While the Fair Labor Standards Act of 1938 (“FLSA”) includes child labor provisions, these provisions apply to oppressive child labor in commerce or production,[16] which it defines as a condition of employment found to be hazardous or detrimental to their health or well-being.[17] However, proper application of the FLSA hinges on whether the child qualifies as an employee.[18] Outside of the FLSA, some states require trust accounts for a percentage of a minor’s wages under creative or artistic employment.[19] Perhaps the most prolific of such laws is California’s Coogan Law, which mandates 15 percent of a minor’s gross earnings be set aside by the employer into a trust or savings account[20], colloquially known as a “Coogan account.”[21] The law’s namesake was 1920s child actor Jackie Coogan, whose movies inspired “Jackie-mania” and merchandise with his image, yet in adulthood had to sue his mother and former manager for the earnings he made as a child.[22] However, Coogan-style laws apply to child performers, not internet personalities.[23] This distinction means that children who derive earnings from social media have no legal recourse if their parents pocket 100 percent of profits from using them for content.
Moreover, states vary in the property rights they permit for use of a minor’s likeness. For example, California requires the consent of the minor’s parent or legal guardian before a minor’s name, photograph, or likeness can be used for advertising purposes,[24] but this provision is likely a nonstarter for parents who want to start family vlog channels. Generally, the use of a minor’s likeness is at the discretion of the parent or legal guardian, so the option to decline is removed in situations where the parent bypasses permission by posting to their own accounts.
III. Discussion
Ohio legislators are attempting to alleviate the unregulated world of family vlogging by placing legal guardrails on parents’ broad authority to monetize their kids in vlog content. In January 2024, two Democratic members of the Ohio House of Representatives introduced The Kidfluencer Protection Act, which requires more transparency and detailed recordkeeping for online platforms and account holders posting vlogs with children.[25] The bill would require online platforms that compensate for vlog content to provide the account holder with an itemized statement, including the earnings from each vlog, at least once every thirty days.[26]
The bill distinguishes “vloggers” from “vlogging minors” by assigning “vlogger” to individuals residing in Ohio that create video content published as a vlog.[27] On the other hand, a “vlogging minor” is a minor whose name, photograph, or likeness is included in at least thirty percent of a vlogger’s video for which he is compensated.[28] Under the proposed law, a “vlogging minor” is distinct from a “publishing minor,” which refers to a minor who independently creates and publishes vlog content as well as retain control of the publishing account.[29]
Vloggers whose videos include a qualifying vlogging minor would be required to maintain record of the name and age of each vlogging minor featured, the number of vlogs featuring the minor that generated compensation, the total number of minutes each vlogging minor was featured in vlogs, and the total compensation from vlogs featuring each child.[30] These records must be provided to each vlogging minor who was featured in a vlog in the previous calendar year.[31]
Notably, the Act places more power in the hands of minors who are included in compensated vlogs. Once they reach the age of eighteen, a former vlogging minor may request online platforms to permanently delete any vlog that contained their name, likeness, or photograph when they were a minor, and online platforms must take all reasonable steps to comply with the request.[32] Even when the vlogging minors are under eighteen years of age, they may commence a civil action to enforce the law if a vlogger does not provide them the required records of the amount of money their appearances generated within the required timeframe.[33]
The bill also requires vloggers to set aside a portion of their earnings from vlogs featuring the minors[34], similar to a Coogan Account. The bill creates a “minimum contribution” formula to determine how much money the vloggers must contribute to the minor’s trust account.[35] The minimum contribution consists of one-half of the percentage of time the vlogging minor was featured in a vlog multiplied by the gross earnings for that vlog in a calendar year. [36] For example, a twenty-minute vlog that features a minor for a total of five minutes and earns the vlogger $2,000 in a calendar year would require a $250 minimum contribution into the minor’s trust account. If a vlog features more than one vlogging minor, the minimum contribution must be equally divided and deposited into separate trust accounts for each minor, even if the percentage of time featured differs for each minor.[37] The trust accounts must be held by a bank, corporate fiduciary, or trust company and become accessible to the minor when they turn eighteen.[38] If the vlogger violates this section of the proposed law, the vlogging minor can sue for enforcement, and courts would have discretion to award actual damages, punitive damages, or attorney’s fees if the minor prevails in the suit.[39]
As of this writing, the bill has only been introduced in the Ohio House, but the legislation has already garnered support from former child entertainers.[40] Actress Alyson Stoner, who starred in movies like Camp Rock and Cheaper by the Dozen as a child[41], attended the press conference in Columbus the day the bill was introduced.[42] Ms. Stoner stated, “(T)here are limited ways to monitor the safety and living conditions of kids on social media… Taking steps to safeguard a portion of child influencers’ earnings and their right to privacy is a crucial step in minimizing the harm that hundreds of thousands of children have experienced across traditional and digital media.”[43]
IV. Conclusion
While the proposed Kidfluencer Protection Act in the Ohio Statehouse is an important step in protecting minors in their parents’ vlogs, child labor laws across the United States must catch up to the digital age. Children featured on family vlog channels are generating compensation and those who profit from this content should be maintaining the same recordkeeping about earnings as any other job. Moreover, children should be in control of their digital footprint and have the right to request the removal of content for which they never provided express consent to be featured in the first place. Other states should follow Ohio’s lead in passing similar legislation so vlogging minors can take charge of their own identities before they are shaped by vlog viewers.
[1] Jordan Miller, Ruby Franke Case: A Timeline of Events, The Salt Lake Tribune (Oct. 4, 2023), https://www.sltrib.com/news/2023/10/04/ruby-franke-case-timeline-events/
[2] Id.
[3] Sarah Berry, Ruby Franke and the Problem with “Carrot and Stick” Parenting, The Sydney Morning Herald (Sept. 18, 2023), https://www.smh.com.au/lifestyle/health-and-wellness/ruby-franke-and-the-problem-with-carrot-and-stick-parenting-20230913-p5e4a0.html
[4] Id.
[5] Shannon Sollitt, Utah Parenting Youtuber Ruby Franke and Sisters Got Thousands in PPP Loans, Records Show, The Salt Lake Tribune (Sept. 14, 2023), https://www.sltrib.com/news/2023/09/14/utah-parenting-youtuber-ruby/
[6] Jordan Miller, Ruby Franke Plea Agreement Details Abuse of Her Two Young Children, The Salt Lake Tribune (Dec. 18, 2023), https://www.sltrib.com/news/2023/12/18/ruby-franke-plea-agreement-details/
[7] Id.
[8] Id.
[9] Id.
[10] Edward Helmore, Ruby Franke, Youtube Mom Vlogger, Sentenced to Prison for Child Abuse, The Guardian (Feb. 20, 2024), https://www.theguardian.com/us-news/2024/feb/20/ruby-franke-youtube-vlogger-prison-child-abuse
[11] Id.
[12] Rachel Dunphy, The Dark Side of YouTube Family Vlogging, New York Magazine (Apr. 17, 2017), https://nymag.com/intelligencer/2017/04/youtube-family-vloggings-dark-side.html
[13] Id.
[14] Id.
[15] Madeline Berg, How This 7-Year-Old Made $22 Million Playing with Toys, Forbes (Dec. 3, 2018), https://www.forbes.com/sites/maddieberg/2018/12/03/how-this-seven-year-old-made-22-million-playing-with-toys-2/?sh=3e590ab14459
[16] 29 U.S.C. § 212 (2023)
[17] 29 U.S.C. § 203 (2023)
[18] Id.
[19] Coogan Law, SAG-AFTRA, https://www.sagaftra.org/membership-benefits/young-performers/coogan-law
[20] Cal. Fam. Code § 6752 (2023)
[21] Coogan Law, supra note 18.
[22] Id.
[23] Fam. § 6752
[24] Cal. Civ. Code § 3344(a)
[25] H.B. 376, 135th Gen. Assemb., Reg. Sess. (Ohio 2024).
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] Id.
[31] Id.
[32] Id.
[33] Id.
[34] Id.
[35] Id.
[36] Id.
[37] Id.
[38] Id.
[39] Id.
[40] Reps. Grim, McNally Introduce The Kidfluencer Protection Act, The Ohio House of Representatives, https://ohiohouse.gov/news/democratic/reps-grim-mcnally-introduce-the-kidfluencer-protection-act-118105#:~:text=The%20Kidfluencer%20Protection%20Act%20will,once%20the%20minor%20turns%2018.
[41] Alyson Stoner, IMDB, https://www.imdb.com/name/nm1351987/?ref_=nmbio_ov
[42] Reps. Grim, McNally, supra note 39.
[43] Id.
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