Author: Washington Journal of Law, Technology & Arts

Proposed Fee Increase for Artist Visas Threatens International Cultural Exchange

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Image by Ahmad Ardity from Pixabay

By: Smitha Gundavajhala

On Thursday, February 12, the Seattle Symphony opened its doors for a three-day run of Beethoven’s Symphony No. 6. For weeks, the symphony had advertised that soloist Carla Caramujo would take the stage for the performance. However, as opening day approached, the Symphony had a change of plans. The web page for the concert displayed a message: “Due to delays with artist visa processing, soloist Carla Caramujo is regretfully unable to perform on this program.”

Delays in artist visa processing have prevented international artists from making their scheduled performances in the United States, and deprived American audiences of valuable opportunities for cultural exposure and exchange. As Tom Davis, a former Chairman of the Committee on Government Reform, said in an April 4, 2006 hearing on the impact of visa processing delays, “the American cultural scene will continue to remain vibrant only as long as foreign artists are able to bring their work to American stages and galleries.” This blog will explore a history of delays in processing the artist visa, a proposed rule to increase the efficiency of visa processing, and the implications of that rule for cultural exchange.

Delayed Artist Visas: A History

The term “artist visa” actually refers to two kinds of visas: O visas and P visas. O visas are for artists who are coming to the United States for longer terms, and P visas are for artists who are staying only temporarily to perform. Petitions for O and P visas are reviewed by the United States Citizenship & Immigration Service (USCIS). Under the Immigration and Nationality Act (INA), the statute that created USCIS, O and P visa petitions must be processed within 14 days (8 U.S.C. §1184 (c)(6)(D)).

USCIS has struggled to meet this processing time for decades. Art advocacy groups have traced the delay to 2001, when USCIS implemented a Premium Processing Service (PPS) that would guarantee visa processing in 15 calendar days for artists who paid a $1,225 fee. Similar to the creation of express lanes on highways, the PPS option created “traffic” for applicants who could not pay the fee: the processing time for applicants was an average of 45 days before PPS, and extended up to 6 months after PPS. In 2010, the Department of Homeland Security (DHS) adopted a rule that committed USCIS to meeting the day processing time required by the INA.

In 2019, Congress passed the USCIS Stabilization Act (HR 8089), a piece of emergency legislation intended to address processing delays, in part by increasing the PPS fee. The USCIS Stabilization Act allowed DHS to suspend the use of premium processing if circumstances prevented the timely processing of petitions. However, despite consistent delays in processing, DHS has not suspended premium processing. Today, the PPS fee costs $2500, and artist visa delays continue to accumulate.

When President Biden took office in 2021, the Biden administration faced the task of reducing backlogs in visa processing times that had been deepened by Trump-era policies. That is where DHS’s proposed rule comes in.

The Proposed DHS Rule

The Department of Homeland Security is proposing a rule that would increase the cost of applying for an O or P visa by more than 250 percent. O visa fees would increase from $460 to $1,655, and P visa fees would increase from $460 to $1,615. DHS justifies the fee increase by citing high demand and insufficient staff in USCIS. The fee increase, along with an increase in the required processing time from 15 calendar days to 15 business days, is intended to provide USCIS with more funding, staff, and time to catch up with the backlog in processing O and P visa petitions. 

DHS’s authority to propose and promulgate this rule comes from the Immigration and Nationality Act — in particular, from the section on the “disposition of moneys” (8 U.S.C. §1356). Administrative agencies like DHS have the power to propose and enact rules to carry out the objectives stated in statutes that the agencies administer, like the INA. If the rule is adopted, it adds an additional layer of requirements to the statute that must be met along with the base requirements of the statute itself. Agencies must provide the public with a Notice of Proposed Rulemaking (NPRM) and allow the public an opportunity to comment before adopting a rule.

The proposed fee increase for artist visas sits within this unassuming administrative framework. Members of the public are often unaware of the existence of NPRMs and uninformed on how to comment. In addition, even though anyone can submit a comment, many of the stakeholders impacted by this proposed rule do not live in the United States, and are unlikely to be aware of the opportunity to comment on the rule.

Implications of the Rule

After the Biden administration committed to reducing processing times, it followed through by approving a $389 million budget for the 2023 fiscal year to support that effort. It is unclear whether that added funding is actually being used to improve processing times. DHS is still passing costs down to artists, and if the rule is passed, those costs will only increase.

The current framework for O and P visa petitions is already inequitable: those without the resources to pay a $2500 PPS fee are impacted by visa processing delays, and risk losing out on opportunities to perform. Independent artists and non-profit organizations are particularly impacted by this inequity, and are likely underrepresented in international cultural exchange. However, the current processing fees are lower than the proposed fees, so despite processing delays, artists currently have greater access to petitioning than they would under the new rule.

If the rule is adopted and implemented, DHS may or may not catch up with the backlog in O and P petitions. However, the cost of applying for an artist visa will increase, and the pool of artists that are able to apply for and obtain visas will skew in favor of those wealthy enough to absorb the fee increase. One thing is certain: adopting the rule will cause the United States to lose out on a great deal of talent, and cultural exchange is likely to suffer. 

DHS is currently accepting written comments on this proposed rule until March 6, 2023. The electronic Federal Docket Management System will accept comments before midnight eastern time at the end of that day.

Litigation Funding in IP: Caveat Emptor

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Close up of poker chips by Markus Spiske is licensed under CC-CC0 1.0

By: Nicholas Lipperd

Gambling seems to be an American tradition, from prop bets on the Super Bowl to riding the stocks through bear and bull markets. The highest stake gambling is done by investment firms, some of whom are finding profitable bets to be had on civil court cases. The process of Third-Party Litigation Funding (“TPLF”) is simple enough on its face: a funder pays a non-recourse sum either to the client directly or to the law firm representing the client. In exchange, subject to the agreed upon terms, the funder receives a portion of any damages awarded. Thus, TPLF is no more than a third-party placing a bet on the client’s case, somewhat similar to the choice a law firm makes when taking a case on contingency. With $2.8 billion invested in the practice in 2021, TPLF seems to be a betting scheme that is paying off.

TPLF is expanding from business litigation into patent litigation. Since the creation of the Federal Circuit, damages in patent infringement cases have skyrocketed, increasing attention to patent cases. TPLF is no exception. The emergence of third-party funding in patent litigation could allow individuals to assert patent rights who previously could not have afforded it. Unlike agreements directly with law firms, third-party funding is not controlled by the American Bar Association’s (“ABA”) Rules of Professional Conduct for lawyers. While this creates some concern in any TPLF case, this lack of protection in patent cases is unique: the funder can obtain the rights of the patent(s) from their clients. 

As previously mentioned, a barrier many patent owners face when attempting to assert their rights is the cost of litigation. While patent litigation cases rarely proceed to a bench trial, these cases typically take three to five years to complete. Intrinsically linked to this timeline is the price tag. Infringement cases where over $25 million in damages is at risk may run a median of $4 million in litigation costs. For cases with less than $1 million at risk, the median litigation cost sits at just under $1 million. A simple look at the risk versus rewards tradeoffs in this case paints a discouraging picture for the plaintiff. Regardless of the expected damages, the cost of litigation is an undeniably large factor, and one that leads to many cases being settled within a year rather than being tried on their merits. 

When the client cannot afford to pay the price of litigation yet intends to assert the patent rights, TPLF creates an opportunity to pursue the case. Plaintiff-side litigation seems like a simple win-win for the client. Yet as with anything, the devil is in the details. A funder is naturally motivated to see a return on this investment, so a client looking at the deal must look past the surface. Not all funding is arranged on a non-recourse model, leaving clients no better off should cases become losers than if they had chosen a billable hour payment structure with the firm. TPLF often does not cover attorney’s fees awards, so clients may be on the hook for more than they realize. Litigation funding arrangements often come with “off-ramps” for the investor should the case take an unexpected turn or the funder stops believing in the merits of the case. This means the funder may be able stop funding the client at certain stages of litigation, leaving the client or the firm without funding for the remaining stages. 

TPLF has often been described as the “wild west” of funding cases. In part, this is due to the lack of regulations surrounding the practice. It is also due to the fact that third-party funders are not constrained by the ABA’s Rules of Professional Conduct like attorneys are. 

Attorneys may not abdicate their Rule 1.1 duty of competency, yet TPLF creates tension with this duty. A third-party funder has made an investment in a case. Like any diligent investor, the funder likely wants to track the case closely to ensure it continues to align with the funder’s financial interest. Should the funder attempt to exert control over the case to protect this interest, it is up to the lawyer to resist. This may leave the client in trouble; should the disagreement be large enough, the client could see their funding removed as the TPLF exercises a contractual “off ramp.”

Perhaps the most implicated ABA rule in TPLF structures is Rule 1.6, the Duty of Confidentiality. This rule, and the related Federal Rule of Evidence 502 regarding attorney-client privilege, create friction with TPLF arrangements. Funders want as much information as possible before and during the funding of a case, as they want to be able to gauge the strength of their future and current investments. While all disclosures must be clearly sanctioned by the client, when do these disclosures waive attorney-client privilege? The majority of lower courts hold that communications about the case with a TPLF fall under work-product privilege protection, a question the Supreme Court has not answered and one the Federal Circuit danced around. (See In re Nimitz Techs. LLC, (Fed. Cir. 2022) denying a writ of mandamus to protect the District Court from reviewing litigation funding materials in camera.)

While ABA Rule 1.5 prevents firms from charging unreasonable fees, including contingency rates, it does not prevent a TPLF from doing so. A funder can bargain with a client for whatever portion of the damages award they like, and they have much more bargaining power than the client does. This bargaining power may be used for more than simply leveraging a larger percentage contingency fee than a firm could charge.

While damages in patent cases are high enough to attract TPLF, it is more than money that may attract third-party funders to patent litigation. Often, the patent itself is just as valuable as the damages award. Rule 1.8(i) prevents attorneys from acquiring proprietary interest in the cause of action or subject matter of litigation. Again, this does not apply to third-party funders, who are free to include any and all patent rights in the contract to fund a client’s case. 

Patent owners may face a catch-22 style choice in this scenario. If they cannot afford to stake the cost of litigation and if a firm does not see value in taking it on contingency, owners may turn towards TPLF. Yet, if funders see more value in the patents than the potential litigation damages, patent owners must make a hard choice. Obtaining funding will give a patent owner a one-time shot at a large damages award. The owner, win or lose, will not be the owner of the patent any longer, and will lose any potential revenue stream it would produce. Yet if owners cannot assert their patent rights in court, what value do their patents hold? Patent owners have promoted the progress of science and useful arts in the United States, and in exchange they receive limited monopolies in the form of their patents. These monopolies are not so easily maintained and defended though. Patent owners must carefully consider their options when looking to assert their rights. Patent litigation is expensive and lengthy, and while having TPLF cover all litigation costs may seem like a sterling option, owners must dig deeper to fully understand the trade-offs. Could they lose funding support halfway through litigation? Would funding the case be worth giving up their patent rights? TPLF is still newly emerging in patent litigation cases, but for potential clients, the message is already clear: in deciding to take on a third-party funder, let the buyer beware.

Talking to Machines – The Legal Implications of ChatGPT

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By: Stephanie Ngo

Chat Generative Pre-trained Transformer, known as ChatGPT, was launched on November 30, 2022.  The program has since swept the world by storm with its articulate answers and detailed responses to a multitude of questions. A quick Google Search of “chat gpt” amasses approximately 171 million results. Similarly, in the first five days of launch, more than a million people had signed up to test the chatbot, according to OpenAI’s president, Greg Brockman. But with new technology comes legal issues that require legal solutions. As ChatGPT continues to grow in popularity, it is now more important than ever to discuss how such a smart system could affect the legal field. 

What is Artificial Intelligence? 

Artificial intelligence (AI), per John McCarthy, a world-renowned computer scientist at Stanford University, is “the science and engineering of making intelligent machines, especially intelligent computer programs, that can be used to understand human intelligence.” The first successful AI program was written in 1951 to play a game of checkers, but the idea of “robots” taking on human-like characteristics has been traced back even earlier. Recently, it has been predicted that AI, although prominent now, will permeate the daily lives of individuals by 2025 and seep into various business sectors.  Today, the buzz around AI stems from the fast-growing influx of  emerging technologies, and how AI can be integrated with current technology to innovate products like self-driving cars, electronic medical records, and personal assistants. Many are aware of what “Siri” is, and consumers’ expectations that Siri will soon become all-knowing is what continues to push the field of AI to develop at such fast speeds.

What is ChatGPT? 

ChatGPT is a chatbot that uses a large language model trained by OpenAI. OpenAI is an AI research and deployment company founded in 2015 dedicated to ensuring that artificial intelligence benefits all of humanity. ChatGPT was trained with data from items such as books and other written materials to generate natural and conversational responses, as if a human had written the reply. Chatbots are not a recent invention. In 2019, Salesforce reported that twenty-three percent of service organizations used AI chatbots. In 2021, Salesforce reported the percentage is now closer to thirty-eight percent of organizations, a sixty-seven percent increase since their 2018 report. The effectiveness, however, left many consumers wishing for a faster, smarter way of getting accurate answers.

In comes ChatGPT, which has been hailed as the “best artificial intelligence chatbot ever released to the general public” by technology columnist, Kevin Roose from the New York Times. ChatGPT’s ability to answer extremely convoluted questions, explain scientific concepts, or even debug large amounts of code is indicative of just how far chatbots have advanced since their creation. Prior to ChatGPT, answers from chatbots were taken with a grain of salt because of the inaccurate, roundabout responses that were likely programmed from a template. ChatGPT, while still imperfect and slightly outdated (its knowledge is restricted to information from before 2021), is being used in manners that some argue could impact many different occupations and render certain inventions obsolete.

The Legal Issues with ChatGPT

ChatGPT has widespread applicability, being touted as rivaling Google in its usage. Since the beta launch in November, there have been countless stories from people in various occupations about ChatGPT’s different use cases. Teachers can use ChatGPT to draft quiz questions. Job seekers can use it to draft and revise cover letters and resumes. Doctors have used the chatbot to diagnose a patient, write letters to insurance companies,  and even do certain medical examinations. 

On the other hand, ChatGPT has its downsides. One of the main arguments against ChatGPT is that the chatbot’s responses are so natural that students may use it to shirk their homework or plagiarize. To combat the issue of academic dishonesty and misinformation, OpenAI has begun work on accompanying software and training a classifier to distinguish between AI-written text and human-written text. While not wholly reliable, OpenAI has noted the classifier will become more reliable the longer it is trained.

Another argument that has arisen involves intellectual property issues. Is the material that ChatGPT produces legal to use? In a similar situation, a different artificial intelligence program, Stable Diffusion, was trained to replicate an artist’s style of illustration and create new artwork based upon the user’s prompt. The artist was concerned that the program’s creations would be associated with her name because the training used her artwork.

Because of how new the technology is, the case law addressing this specific issue is limited. In January 2023, Getty Images, a popular stock photo company, commenced legal proceedings against Stability AI, the creators of Stable Diffusion, in the High Court of Justice in London, claiming Stability AI had infringed on intellectual property rights in content owned or represented by Getty Images absent a license and to the detriment of the content creators. A group of artists have also filed a class-action lawsuit against companies with AI art tools, including Stable AI, alleging the violation of rights of millions of artists. Regarding ChatGPT, when asked about any potential legal issues, the chatbot stated that “there should not be any legal issues” as long as the chatbot is used according to the terms and conditions set by the company and with the appropriate permissions and licenses needed, if any. 
Last, but certainly not least, ChatGPT is unable to assess whether the chatbot itself is compliant with the protection of personal data under state privacy laws, as well as the European Union’s General Data Protection Regulation (GDPR). Known by many as the gold-standard of privacy regulations, ChatGPT’s lack of privacy compliance with the GDPR or any privacy laws could have serious consequences if a user feeds ChatGPT sensitive information. OpenAI’s privacy policy does state that the company may collect any communication information that a user communicates with the feature, so it is important for anyone using ChatGPT to pause and think about the impact that sharing information with the chatbot will have before proceeding. As ChatGPT improves and advances, the legal implications are likely to only grow in turn.

Termination Rights and the Musical Modernization Act’s Blanket Licenses

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By: Perry Maybrown

Copyright law in the digital age is tricky, to say the least. Scrolling through blog posts on WJLTA’s own website will demonstrate that fact; when you search the keyword “copyright” there are over 100 related posts. Music copyright law is no exception. Since October 2022, the U.S. Copyright Office has been working through the long and arduous process of formal rulemaking (also called notice and comment rulemaking) to pass a rule clarifying who should receive royalties from blanket licenses after a copyright transfer is terminated. A blanket license is a set amount of money (currently 9.1 cents per play) that a composer gets whenever his or her work is performed. This can be through plays from a streaming service or a recording broadcast in a public place, for example. The Copyright Office’s stance is that authors, not publishers, should receive the royalties after the copyright is terminated. 

Relatedly, a right found in the Copyright Act of 1976 has recently begun to slowly creep into relevance. According to 17 U.S.C. § 203, authors have the right to terminate the transfer of a copyright (except in specific circumstances like work made for hire) between 35 and 40 years after the transfer occurred This allows artists and their heirs to reclaim copyrights that were transferred in raw deals and renegotiate for better terms. However, in the case of music rights, this may not always be a clean break.

The issue is: who receives the royalty once the copyright transfer is terminated? Theoretically, the royalty rights should revert to the author or their heirs. Still, some loopholes allow companies to keep raking in profits even after the right has terminated. 

There is, however, an exception in the termination statute:

(1)A derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination, but this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work covered by the terminated grant. 

A derivative work is ‘‘a work based upon one or more preexisting works, such as a . . . musical arrangement, . . . sound recording, . . . or any other form in which a work may be recast, transformed, or adapted.’’ In plain English – if the copyright holder makes a derivative work before the copyright is terminated, then they can use that derivative work the same way they have been using the original, but they cannot continue making derivative works.

For example, let’s say Musician A makes a beautiful song and then signs their rights to the song over to Company B. Company B starts making derivative works, such as a parody or a movie, based on Musician A’s beautiful song. Musician A decides that they do not like the deal they made with Company B and, after 35 years, terminates the copyright transfer. Company B can now no longer do anything in relation to that specific copyright. But, they can keep making money from the derivative works they made prior to the termination of the transfer.

Unfortunately, reality is often more complicated than the example given above. Rather than creating something themselves, companies will pass the license on to other more specialized groups in order to create a derivative work. Does the exception still apply under these circumstances? Take the example of Mills Music, Inc. v. Snyder, a 1985 case that involved this issue. There, a musician signed over their copyright to a publisher, who in turn granted a blanket license to recording companies. The publishing company was able to collect royalties through that license. But then the musician terminated the copyright transfer, posting the question of who should keep getting the royalties? The publisher didn’t make the derivative work themselves; they just licensed the work out to another company that then made the new work. In this case, the court found that the chains of licenses were protected by the exception and therefore the publisher got to keep the royalties.

However, things have changed since the 1980’s. Currently, the issue surrounds a type of blanket licenses introduced in 2018 that only apply to digital distribution of music. The Copyright Office’s view is that the exception does not apply to this newer type of digital licenses. To clarify its stance, the copyright office is working to promulgate a new rule. The three reasons the copyright office believes that the exception does not apply are:

  1. The blanket license is not something that can be “terminated.” Rather, it is a statutory license that is “self-executing.” Because it cannot be terminated, it would not make sense for a termination exception to apply.
  2. For the exception to apply, there must be a derivative work prepared “under the authority of the grant.” Under the new blanket licenses there is a presumption that digital music publishers are not creating their own derivative works, only obtaining and licensing sound recording derivatives from other companies. The blanket license that ties together the digital music publisher and company that made the derivative work is not one that is protected by the blanket license. 
  3. If the exception were to apply to blanket licenses then it would apply to all terms, which could lead to a wider effect than intended. For example, if the termination exception is applied broadly then it could also impact statutory changes. If there is a termination and Congress changes the statute on blanket licenses, what laws would apply? Would it be the law in force at the time of the termination? Or the most up to date law?

The copyright office concludes their analysis by discussing the reasons why, if the exception did apply, it would be irrelevant. The wording of the statutes indicate that “copyright owner” receives the royalties, and this owner is subject to change for a variety of reasons. Thus, the copyright office claims, it would be unreasonable to assume that the music publisher would become the permanent recipient of royalties. This rule proposal is subject to notice and comment, which means it’s subject to change. The public was able to offer comments on the proposed rule, sharing their views on its impacts and why they disagreed or agreed with the copyright office’s proposal. The opportunity to comment closed January 5, 2023. The copyright office will now consider all comments before releasing a decision. From the discussion occurring around this rule change, this update is absolutely needed. However, formal rulemaking is a long process. As of right now it is unclear how long that may take and what exact impact this new rule will have on digital licenses.

Coogans All Around – Protecting Child Performers in the Digital Age

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Photo by Martin Lopez on Pexels.com

By: Matt Williamson

The Story of Jackie Coogan 

A Star is Born

Jackie Coogan may not be a household name today, but in 1924 he was on top of the world. 

A movie star with countless credits and awards to his name,  Coogan was raking in nearly $22,000 a week, had a massive contract with MGM, and was one of the most famous people in America. Oh, and to top it all off – he was only nine years old.

After being plucked from relative obscurity by Charlie Chaplin, Coogan became an almost instant sensation and Hollywood’s first child movie star. As his star rose his fame and riches seemed both immeasurable and unending. 

Sadly, they were far from either. As Coogan grew and matured, opportunities started to dry up and he soon needed to dip into the vast sums he had made in his youth. The only problem – legally, they weren’t his. 

The Fair Labor Standards Act and Child Labor Laws

When the Fair Labor Standards Act (FLSA) was passed in 1938, it represented a landmark shift in federal regulation of child labor. For the first time, the United States government set a minimum age requirement on the employment of children in any industry deemed to be hazardous or detrimental to a child’s health. There were, however, two notable exceptions; agricultural work and acting. These exceptions left child actors like Coogan with essentially no legal safeguards to constrain the agents and studios who employed them. Moreover, state laws throughout the country, including in California, held that children lacked the capacity to form contracts, and legally own property. Thus, child actors could not be directly paid, and instead, their parents were the recipients of their earnings.

A Dark Example

So what did this all mean for Coogan, as he struggled to gain control of the money he had made through years of film and television credits? All the earnings he had received before his 18th birthday were the legal property of his parents. When he eventually took his mother and stepfather to court in 1938 to demand the return of the money, he came away with little more than a grinding legal battle that depleted his already dwindling resources and an admission from his mother that his once immeasurable fortune had been squandered.

The story of Jackie Coogan’s exploitation was such a national scandal that California lawmakers were shocked into action. In 1939, the state legislature passed the California Child Actor Bill, which codified certain rights and protections for children acting in film and television, including the requirement that parents deposit 15 percent of their childrens’ earnings into blocked trust accounts that would be accessible on their child’s 18th birthday. Although these regulations did not initially spread to every U.S. state, several states eventually codified similar protections in what are commonly known as “Coogan Laws.”

Coogan Laws in the Digital Age

While Coogan Laws may provide some protections for young actors today, a growing number of voices, including in the Washington State Legislature, are raising concerns about the potential for a modern-day version of the star’s exploitation: the rise of family vlogging and Kidfluencers.

The Rise of Family Vlogs and the Kidfluencer

From its earliest days, Youtube has played host to a seemingly never-ending supply of “cute kid does something cute and/or funny” videos and posts. Viral sensations like the “Charlie bit my finger” video have received millions of views, and, since the platform began allowing creators to monetize their channels in 2008, generated thousands of dollars.

But it isn’t just cute kids doing funny things anymore. Today, there are hundreds of channels dedicated to Family Vlogging – a brand of content that aims to bring an audience into the daily life of a family via videos and social media posts. These channels range broadly in their presentation with some focusing on authentic representations of family life, while others feature toy reviews, parenting hacks, or prank battles. 

The result of all this content is that kids, sometimes at exceptionally young ages, are quickly becoming some of the biggest stars on Youtube. For instance, in 2021, Ryan Kalj and Nastya, two popular content creators aged 10 and 7 respectively, both garnered billions of viewing hours on their channels and made more than $27 million apiece while posting videos to the platform. It’s not just the views that are bringing in the bucks either, as sponsored content can provide creators hundreds of thousands of dollars in both monetary and in-kind compensation like toys and health and beauty products.  

Moreover, right now there are no Coogan Law equivalents for Kidfluencers (a helpful portmanteau for these stars). Therefore, parents are still the legal owners of all their children’s earnings and have free reign to do what they please with the profits. 

Regulatory Responses or a Lack Thereof

With all this money flowing, and essentially no guardrails in place to protect the interests of children,  concerns about the potential for exploitation and abuse in this space have become increasingly widespread. In a recent YouGov poll, nearly two-thirds of Americans said that underage influencers were exploited by a parent or guardian at least “somewhat” often. The same poll found a clear consensus over what Americans wanted done in response: child labor protections extended to Kidfluencers.

Despite this, only a few states have even considered proposals aimed at extending labor protections to Kidfluencers. One of these states though is Washington.

In 2022, House Bill 2032 was introduced to the Washington State House of Representatives. The brainchild of Seattle high school student Chris McCarty, the bill proposed a bold new structure for protecting kids featured in family video content. Among other provisions, it set out to mold the Coogan Law formula to fit the modern age by requiring that parents producing monetized videos featuring their minor children, deposit a percentage of the money they made from these videos into trust accounts for the children featured in the content. 

However, despite positive news coverage and bipartisan sponsorship,  the bill did not advance through committee in 2022, and after being reintroduced this session, it once again failed to move out of committee.

This repeated failure and the general lack of political action being explored on this seemingly popular issue beg the question: Why is establishing regulations of this type of content so difficult? 

One possible answer may come from an important stakeholder in this issue: tech companies. The companies that host this content regularly attempt to avoid regulation and would almost certainly prefer to avoid the cost and trouble associated with ensuring compliance with new regulations in this area. 

Another reason comes from a more fundamental source: the mechanics of these regulations themselves. Any attempt to regulate this kind of content will inevitably involve states in some way invading the relationship between parents and their children, raising a host of thorny legal questions and concerns over constitutionality, as well as possible political blowback.

Ultimately, when viewed in light of the complicated technical challenges and powerful opponents these regulatory efforts face, it is a small wonder that they remain few and far between. 

Conclusion

To conclude, many Kidfluencers seemingly serve as close parallels to Jackie Coogan. Today, they sit on top of the world, raking in millions of dollars and billions of views, and can rely on little in the way of legal protection. But maybe, just maybe, we can learn a little from Coogan’s legacy, and make sure their stories don’t parallel his too closely.