Ingrid Cherry
Mommy-blogging first took off in the early 2000s.[1] In the early days, mommy-bloggers connected with their audiences primarily through their blog (hence the name).[2] These platforms and the creators behind them filled a valuable space in the child-having community. They discussed the good, the bad, and the ugly of being a parent and made topics like postpartum depression, adapting to parenthood, and admitting that there are certain things that their children do that simply annoy them mainstream.[3] While the most successful bloggers amassed large audiences along with lucrative brand and advertising deals, there was a relative amount of privacy that these creators, and relevantly, their families enjoyed.[4] Their work, insulated from the algorithms of Instagram and TikTok, which serve content based on a user’s metadata, needed to be sought out by readers.[5] The written-form style of their content relied more on anecdotes than pictures and videos that might shatter any level of anonymity that their children had left.
With the social media boom in the 2010s and beyond, the landscape of mommy-blogging began to change. Through carefully curated photoshoots, the children behind these bloggers’ (now influencers) success took on a more public-facing presence.[6] But the desire for raw, sometimes brutal, honesty that helped mommy-bloggers grow in the first place remained. So, along with the aspirational content came “day-in-the-life” style posts that showcased the intimate details of family life.[7] While many of today’s accounts still have aspirational goals such as teaching tactics for gentle parenting, they also serve the important role of generating income for the creators behind the posts.[8] Even in the absence of brand partnerships, mommy-blogger accounts bring in money from avenues like TikTok’s Creator Fund.[9]
The children play a central role in driving audience growth and revenue, and with this comes not only the job of filming content but also their introduction into the public sphere, which many are too young to consent to.[10] As alluded to earlier, the public sphere in 2022 is much larger than it was in 2005. Social media platforms push content featuring children to the masses.[11] Gone are the days of moms writing exclusively for an audience of moms, if that ever existed. With this shift comes an onslaught of privacy and exploitation concerns.
Unfortunately for these children, the law has not kept pace with changing social media trends to protect their interests. The Fair Labor Standards Act of 1938 has yet to be amended to protect the children of influencers from “excessive child labor.” Similarly, the Coogan Act, which safeguards the money earned by child actors from their parents, has also not been updated to include the children of influencers.[12] Laws on protecting privacy have been primarily designed to protect children from advertisers, not from their parents, and age-limits on social media platforms do nothing to stop adults from posting their children.[13] Increasing discourse online has drummed up attention and concern for the welfare of mommy-bloggers’ children, which can help facilitate necessary legal changes.[14] While we wait for the law to catch up, children continue to be affected by their parents’ posting.
What is their recourse if the law does not catch up in time? An expansion of the Right of Publicity could be a possible avenue. First established in Haelen Laboratories vs. Topps Chewing Gum, Inc., the right of publicity provides that public figures have a right to control who uses their name and image and how it is used.[15] While claims stemming from this right have historically come from celebrities, recent developments in the National Collegiate Athletic Association (NCAA) can pave the way for children of influencers to exercise their right to privacy.[16] In 2021, the NCAA removed restrictions on its name, image, and likeness (NIL) rules for student athletes. The updated rules allow college athletes to participate in NIL activities, such as sponsorship agreements and brand partnerships.[17] Such opportunities are intrinsically tied to the right of publicity.[18]
The NCAA’s change is particularly relevant for the children of mommy-bloggers, as it shows an expansion of rights from professional to amateur athletes. This expanding view of who counts as a ‘public figure’ can be capitalized upon by advocates to cover the children behind massive brand deals and multi-platform businesses. The right of publicity also serves as a viable option for protecting these children’s interests as it is seated within state law.[19] Rather than waiting for congressional action or drudging through the notice and comment period of the regulatory process, cases can be filed immediately at the state level.
A push to recognize the right of publicity in every state could help ensure that the children behind successful social media platforms have an avenue for controlling and approving content that capitalizes off of the child’s name, image, or likeness.
[1] Kathryn Jezer-Morton, Did Moms Exist Before Social Media?, N.Y. TIMES (Apr. 16, 2020), https://www.nytimes.com/2020/04/16/parenting/mommy-influencers.html [https://perma.cc/EML7-DR8M] [https://web.archive.org/web/20221118192039/https://www.nytimes.com/2020/04/16/parenting/mommy-influencers.html]. “New mothers in 2020 might not realize that the conversations around motherhood that they may take for granted—about topics like breastfeeding, or postpartum depression, or sex after childbirth—very rarely took place in public before 2005.”
[2] Id. “This transition was navigated between roughly 2005 and 2010 by the first wave of mommy bloggers, who wrote confessional, raw accounts of their experiences on amateur blogs.”
[3] See id.
[4] Chavie Lieber, She Was the “Queen of the Mommy Bloggers.” Then Her Life Fell Apart., VOX (May 2, 2019), https://www.vox.com/the-highlight/2019/4/25/18512620/dooce-heather-armstrong-depression-valedictorian-of-being-dead [https://perma.cc/457H-G72J] [https://web.archive.org/web/20221118200237/https://www.vox.com/the-highlight/2019/4/25/18512620/dooce-heather-armstrong-depression-valedictorian-of-being-dead]. “At its peak, just after Armstrong appeared on The Oprah Winfrey Show in 2009, Dooce had a monthly 8.5 million readers, and the blog was reportedly earning as much as $40,000 a month from banner ads.”
[5] See Christina Newberry, How the TikTok Algorithm Works in 2022 (and How to Work With It), Hootsuite (Feb. 11, 2022), https://blog.hootsuite.com/tiktok-algorithm/ [https://perma.cc/J9S9-T45C] [https://web.archive.org/web/20221118215209/https://blog.hootsuite.com/tiktok-algorithm/].
[6] See Jezer-Morton, supra note 1. “Unlike the confessional early mommy blogs, Mormon mothers’ blogs broadcast a clean and chipper vision of motherhood, replete with D.I.Y. crafting projects and coordinated family photo shoots.”
[7] Id. “‘Realness’ was mommy blogging’s founding currency, and even as bloggers began striving for more polished content by hiring staff and staging photo shoots, they continued to claim that their guiding mission was to provide honest representation—“real” motherhood.
[8] See Calia Smith, 10 Of the Best 'Gentle Parenting' Content Creators on TikTok, Scary Mommy (Dec. 9, 2021), https://www.scarymommy.com/10-best-gentle-parenting-content-creators-tiktok [https://perma.cc/QJL4-9RX3] [https://web.archive.org/web/20221118202511/https://www.scarymommy.com/10-best-gentle-parenting-content-creators-tiktok].
[9] See TikTok Creator Fund: Your Questions Answered, TikTok (Mar. 25, 2021), https://newsroom.tiktok.com/en-gb/tiktok-creator-fund-your-questions-answered [https://perma.cc/SUW9-N5RQ].
[10] See Abbey Sharp (@abbeyskitchen), TikTok, https://www.tiktok.com/t/ZTRQaWwP8/ [https://perma.cc/8NZD-K294] (last visited Nov. 18, 2022).
[11] Dave Chaffey, Global Social Media Statistics Research Summary 2022, Smart Insights (Aug. 22, 2022), https://www.smartinsights.com/social-media-marketing/social-media-strategy/new-global-social-media-research/ [https://perma.cc/EM7L-FPY9] [https://web.archive.org/web/20221118211117/https://www.smartinsights.com/social-media-marketing/social-media-strategy/new-global-social-media-research/]. “59% of the world's population uses social media.”
[12] Ellen Walker, Nothing Is Protecting Child Influencers from Exploitation, WIRED (Aug. 15, 2022), https://www.wired.com/story/child-influencers-exploitation-legal-protection/ [https://perma.cc/2PMZ-2QQ5] [https://web.archive.org/web/20221118192920/https://www.wired.com/story/child-influencers-exploitation-legal-protection/]. “The Fair Labor Standards Act of 1938, a landmark law which covered the prevention of minors being employed in “excessive child labor,” still has yet to be amended to address child influencers; the same applies for the aforementioned Coogan Act.”
[13] See id. Using the California Consumer Privacy Act as an example of state law that requires parental or guardian consent for minors to share data. Also discussing loopholes in platforms like YouTube’s age policy, which allow for parents/guardians to showcase their children in their videos.
[14] See EJ Dickson, A Toddler on TikTok Is Spawning a Massive Mom-Led Movement, Rolling Stone (July 20, 2022), https://www.rollingstone.com/culture/culture-news/tiktok-wren-eleanor-moms-controversy-1385182/ [https://perma.cc/Z4PJ-ZPUJ] [https://web.archive.org/web/20221118193812/https://www.rollingstone.com/culture/culture-news/tiktok-wren-eleanor-moms-controversy-1385182/].
[15] “[A] man has a right in the publicity value of his photograph, i.e., the right to grant the exclusive privilege of publishing his picture, and that such a grant may validly be made 'in gross,' i.e., without an accompanying transfer of a business or of anything else.” Haelan Labs., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868 (2d Cir. 1953).
[16] See Michael J. Hoisington, Celebrities Sue over Unauthorized Use of Identity, Higgs Fletcher & Mack LLP (Aug. 20, 2022), https://higgslaw.com/celebrities-sue-over-unauthorized-use-of-identity/ [https://perma.cc/7Y62-AV5W] [https://web.archive.org/web/20221118195612/https://higgslaw.com/celebrities-sue-over-unauthorized-use-of-identity/]; see also Justia, Laws for Name, Image, and Likeness Rights of College Athletes, (Aug. 2022), https://www.justia.com/sports-law/name-image-and-likeness-rights-for-college-athletes/ [https://perma.cc/LYF3-RRUK] [https://web.archive.org/web/20221118204211/https://www.justia.com/sports-law/name-image-and-likeness-rights-for-college-athletes/].
[17] See Justia, supra note 16.
[18] Id. “These [NIL rights] essentially correspond to the right of publicity, which does not attach only to professional athletes and other celebrities.”
[19] Hoisington supra note 16. “Currently, the right of publicity is recognized in over half the states, either by statute or common law. Although many states recognize that everyone has a right of publicity, some only recognize celebrity rights.”