New legislation is aimed at compensating kids of famous creators
By Maria T. Cannon
Maria T. Cannon practices entertainment, media, art, data protection and privacy law in Manhattan. Maria earned her J.D. from the University of North Carolina Law School and completed her undergraduate degree at Wake Forest University in English Literature. She is admitted to the New York Bar.
Last week I unearthed a trove of family photos – a collection in which my past ballet and jazz recital portraits were a prominent feature. A real highlight was a shot of me at age 9, as a boy soldier for The Nutcracker, complete with mustached face makeup and a set of sparkling braces offsetting my chubby face. I counted my blessings that these photos exist only in print. What would it be like if, instead, these photos were taken just a few years prior, and older family members had uploaded them to social media, where they were still accessible by friends, strangers, and – worst of all - AI systems scraping the web for training data?
I lucked out, I don’t have that problem - but many of my peers do.
We are at the cusp of young people reaching teenage and adulthood who are being trailed by a vast digital footprint they didn’t create. Parents and other relatives have spent the past 20-odd years uploading every milestone of kids – choosing what is cute at the moment, over what could be embarrassing or even incriminating (a result of our strict “cancel culture”) down the line.
For most 20-year-olds today, that digital footprint (though unchosen) is at least partially hidden from view. Parents who uploaded their children’s lives to various platforms, but kept their domains private, have exercised at least some control over their children’s privacy and autonomous choice to share their lives with others in digital form (though this may not fully protect those images and videos from being scraped as data for use in building AI systems).
For the kids of parent-influencers (or “momfluencers”), it’s a different ballgame. Their digital footprint has not only been unchosen – it’s been monetized, and broadcast for the largest possible audience, with the sole goal of getting the largest possible financial return.
These young adults have had no choice over whether to share their most intimate moments and personal milestones with strangers. They are not given the choice to participate in brand-sponsored shoots that their parents insist are vital to the family’s bank account. Entire lives have been sacrificed to the clickbait culture of the ‘gram. As these children age, they discover not only the social, mental, and emotional repercussions of growing up not as beloved children, but as “clickable content” – they also discover exactly how much money their parents made at their expense.
Because, let’s face it – momfluencers aren’t posting live videos of their own horrific, red-faced screaming meltdowns on TikTok. They’re posting their kids’– and making money off it. At present, guess how much of that money eventually, by law, goes to the “stars” of momfluencer kids? Unless you’re in Illinois, zero.
Yes, effective this past July, Illinois became the first state to enact legislation aimed at compensating children whose parents reach a certain threshold of “momfluencer.” Adults must set aside funds for minor children (under 16) who (1) appear in more than 30% of the paid content on their social channels within a 30-day period; or (2) appear in videos with a number of views that has met the online platform’s threshold for the generation of compensation (or the vlogger received actual compensation greater than or equal to $0.10 per view).
What’s striking is that it took until 2024 for this legislation to be enacted. Other states have similar bills making the rounds – including New York - but the fate of that legislation remains to be seen. Some legislators in those states may not realize that children whose parents capitalize by using their images and voices for content (and to sell garish merch) suffer more than mere economic loss when they don’t have legal right to a cut.
These kids are exposed to a global audience that includes hateful commenters and actual predators. Their loss of privacy is similar to the kids of very famous celebrities, but without the benefit of famous parents, who (we hope), understand the perils of celebrity. Think of how many famous celebrities (Jackie O, among them) who specifically fought to keep their children away from the constant flash of paparazzi bulbs.
The Illinois law – which essentially expands the state’s definition of child labor - is good, but it doesn’t go far enough. There needs to be a new privacy tort for this specific kind of online exposure during childhood. In the past, celebrities have fought for privacy protections for their children – and largely failed, due in part to their status as celebrities by choice. However, this new phenomenon of children who are made famous without their knowledge or consent is not only garish – it should be illegal in every state, and should include avenues to give these children standing in state court.
If the reason you lose your autonomous choice for privacy is because your parents have already laid out a digital footprint without your consent, you deserve legal recourse. If your parents also made a ton of money off of it – you deserve the right to sue for a portion of those earnings to be placed into a trust to access later in life.
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