Alyana Abellar, Blacha Law Office, LLC, Naperville
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Illinois Online Influencers with Children Take Note: Compensation for “Kidfluencers” Now Required
Illinois is the first state in the United States to enact P.A. 103-556 to protect child influencers. Effective July 1, 2024, vloggers who feature minors in their social media content must compensate the minors so long as the minor is featured in 30 percent or more of the content over a 30-day period, and the content is generating a revenue of at least ten cents per view. 820 ILCS 205/2.6(a). The minor, anyone under the age of 16, is deemed to be featured in a vlog and is considered engaged in the work of vlogging when at least 30 percent of the vlog includes the minor’s likeness, name, or photograph. The percentage is measured by the amount of time the likeness, name, or photograph of the minor visually appears or is the subject of an oral narrative in a video segment as compared to the total length of the vlog. Id.
The statute defines “vlog” as “any content shared on an online platform in exchange for compensation.” 820 ILCS 205/0.5. A “vlogger” is defined as an “individual or family that creates video content, performed in Illinois, in exchange for compensation, and includes any proprietorship, partnership, company, or other corporate entity assuming the name or identity of a particular individual or family for the purposes of that content creation.” Id. A vlogger does not include minors under the age of 16 who create their own vlogs.
Online Influencers Who Feature Minors Are Required To Compensate the Minors through a Trust Fund that Becomes Available to the Minors Upon Turning 18
Vloggers who feature minors in their vlogs as specified above are required to set aside gross earnings on the video content including the likeness, name, or photograph of the minor in a trust account that shall be available to the minor engaged in the work of vlogging. 820 ILCS 205/12.6. Said trust account shall be held by a bank, corporate fiduciary, or trust company, and the funds in the account shall become available to the minor upon the minor attaining the age of 18 or until the minor is declared emancipated. 820 ILCS 205/12.6(b). The trust account must also meet the requirements of the Illinois Uniform Transfers to Minor Act, 760 ILCS 20/1, et seq.
If there is only one minor who meets the content threshold as specified above, the percentage of total gross earnings on any video segment including the minor’s likeness, name, or photograph is equal to or greater than half of the content percentage that includes the minor. 820 ILCS 205/12.6(a)(1).
If there is more than one minor who meets the content threshold as specified above (30 percent or more), the percentage for all minors in any segment must be equally divided between the minors, regardless of differences in percentage of content provided by the individual minors. 820 ILCS 205/12.6(a)(2).
Online Influencers Who Feature Minors Are Required To Maintain Records that Must Be Provided to the Minors on an Ongoing Basis
To ensure accountability, the law requires maintenance and disclosure of records. Specifically, vloggers whose content features minors under the age of 16 and are engaged in the work of vlogging shall maintain records of the previous 12-month period containing the following:
- name and documentary proof of the age of the minor engaged in the work of vlogging;
- number of vlogs that generated compensation;
- total number of minutes of the vlogs that vlogger received compensation for;
- total number of minutes each minor was featured in vlogs;
- total compensation generated from vlogs featuring a minor; and
- amount deposited in the trust account for the benefit of the minor featured in the vlog.
If the vlogger fails to maintain the records as required by law, the minor may file a lawsuit to enforce said requirement. 820 ILCS 205/2.6(c), 205/2.6(d).
“Kidfluencers” May File a Lawsuit Against Online Influencers for Knowing or Reckless Violation of this Law
The amendments to the Child Labor Law empower minors to take legal action against vloggers who knowingly or recklessly violate this law. The minors may seek enforcement of the sections regarding maintenance of records and trust accounts. If the minor prevails, courts may award the minor actual damages, punitive damages, and court costs and attorney fees.
Takeaways
Social media is ubiquitous. When social media started, it was mostly used to preserve memories by way of sharing narratives, photos, and videos. Then it eventually became a tool for celebrities to share snippets of their personal lives with their fans. When companies saw the reach of social media, they took the opportunity to start monetizing. Soon enough, social media gave rise to online influencers who started profiting from their social media content. It did not take long for parents and other family members to begin featuring minors in their social media content. It seems natural to assume that the initial intent was to share the memories with the minors and preserve them in such a way to look back at significant moments. However, it is undeniable that there are parents and online influencers who monetize social media content that features minors. Sometimes, the minors themselves amass their own followers. Illinois legislature aims to ensure that the profits of these children are preserved to guarantee that upon reaching the age of majority, they are able to enjoy their earnings.
Online influencers should watch out for when this law becomes applicable to them. As pointed out in the definitions above, only minors under the age of 16 are covered by this statute. As for vloggers, only those who create video content performed in Illinois are affected by this law. These parameters regulate and specify when the law becomes applicable. That said, online influencers should be cautious about their social media content when they feature their children or any minors. The law is enacted for the benefit of these minors and online influencers should make sure to follow the law when it becomes applicable to them or there may be consequences if legal action is taken against them.
For more information about employment and labor law, see CAUSES OF ACTION: EMPLOYMENT ACTIONS (IICLE®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.