Earlier this week, Federal Aviation Administration (FAA) officials announced that new drone regulations will require even recreational drone pilots register their aircraft with the government. The drone registrations are an attempt to track the rogue flying robots, which are becoming an increasing threat to aviation safety. The latest reports suggest that more than 1 million drones are currently flying in the national airspace and another 1 million more are expected to be purchased this year.
Why have drones become so popular? For one thing, drones are a great tool for photographers, whether amateur or established: Real estate photographers use drones to provide aerial views of properties, artists play with drones to create new and unexpected perspectives on otherwise common subjects, and some merely use drones to capture images from their weddings or birthday parties. As the technology improves, drones are being sold at far lower prices, which means even the most inexperienced photography enthusiast has access to its enhanced capabilities.
FAA officials said they still need to sort out the details of the registration system, which they hope to establish next month. Congress has also required that the FAA finalize new drone regulations concerning usage by next spring, nothing that the original deadline of October 2015 has expired. For now, FAA officials claim that enforcing drone registration requirements, which will the give the government access to the owner’s name and address, will at least make them think twice about flying safely and responsibly. As they envision the system, new drone users will be required to take a test and confirm they’ve familiarized themselves with the drone regulations and basic guidelines before flying.
FAA’s Drone Registration Requirements Contradict Their Proposed Regulations
What makes the FAA’s new rules problematic revolves around the proposed drone regulations laid out earlier this year. Those guidelines specifically exempt recreational users and hobbyists from complying with certain drone regulations, which directly contradicts these recently proposed regulations. It doesn’t seem to make any sense that hobbyists or amateur photographers should be required to register their drones if the FAA rules don’t apply to them.
As we’ve previously discussed on Art Law Journal, artists have been affected by the FAA’s proposed drone regulations depending on the purpose of their use. If an artist were commissioned for a work using drone photography – such as in the case of Raphael Pirker, who used a drone to film a commercial at the University of Virginia, then the new drone regulations would govern your drone usage. The proposed drone law also creates a gray area for photographers who create work that they may intend to sell in the future but have not formally entered into any kind of contract for such a sale. But if your use was merely recreational – like taking it to a friend’s party to catch some aerial views of the celebration – then you are likely to be free from any exempt from drone regulations.
Which is why it doesn’t make much sense that the FAA would mandate all recreational users’ registration of drones since they originally didn’t see them as posing any real harm or threat.
Confused? We are too. There’s tons of conflicting information regarding FAA drone law, which is likely why Congress has mandated that the agency must develop and finalize new drone regulations no later than next spring.
A Crash Course in the History of Drone Regulations
The FAA has been discussing drone regulations for some time but hasn’t overhauled the current framework in any meaningful way. Rather, in 2007 the agency issued a policy notice, which updated the current rules surrounding “unmanned aircrafts” in an attempt to incorporate drones.
The policy states that to qualify as a “model aircraft,” and thus be exempt from the need for a special airworthiness certificate, the craft must be under 55 pounds and be operated “purely for recreational or hobby purposes.” This conversely means that anything flown for commercial purposes (or even just non-purely recreationally) must first get approval or become subjected to fines. Meaning if a photographer were specially commissioned to take drone photography, he would be required to obtain an airworthiness certificate, which would require him to meet a host of conditions.
However, that policy notice can’t be regarded as law, since a judge ruled the policy notice is not legally binding in March 2014. With that ruling, drones became effectively unregulated and legal to fly in the U.S. Under another law passed by Congress in 2012 to protect model-airplane enthusiasts, the FAA is prohibited from imposing new restrictions on recreational drone owners. As a result, they have not been required to obtain pilot licenses or undergo training.
The dramatic increase in drone availability and use has clearly had a major impact on national airspace, and Congress has taken steps to get the FAA to re-vamp their rules concerning drones. With mounting reports of drone interference with commercial aircraft, and some very public crashes making national headlines, it’s clear that the FAA needs to revisit and pass new regulations.
Those rules should have been finalized in September 2015, but with the FAA’s missed deadline, it’s clear they’re caving in to pressure by insisting on a new drone registration requirement before they’ve even had a chance to iron out the rules. It’s up to the FAA to determine “which types of unmanned aircraft systems, if any, as a result of their size, weight, speed, operational capability, proximity to airports and populated areas, and operation within visual line of sight do not create a hazard to users of the national airspace system or the public or pose a threat to national security.”
So, the FAA developed a preliminary framework, primarily for commercial or recreational aircraft. The agency’s proposed rules state:
- Drones must weigh less than 55 lbs.
- Drones can only be flown during daylight hours and the operator must have a line of sight to the aircraft at all times.
- Operators must be at least 17 years old and will be required to pass an initial knowledge test, a take an updated test every 24 months.
- The operator must pass a Transportation Security Administration (TSA) review.
- Aircraft cannot operate over people who are not controlling the craft.
- Maximum speed is 100mph and the maximum height is 500 feet. Just as any other aircraft, aircraft markings are required.
- These rules will not apply to model aircraft or hobbyists
The proposed rules clearly state that model aircraft and hobbyists are exempt from keeping with the new rules, which leaves plenty of room for interpretation for artists. Obviously, if you are using the drone to take photos with a specific commercial purpose – say you’ve been commissioned by a magazine to get an aerial shot a brand new hotel property, or you’re secretly filming some major celebrity wedding – it’s clear that these rules will apply to your drone, and that (in one case anyway) you will definitely be violating drone rules if you go ahead with the project. But what if you’re just playing around with the drone, and the commercial opportunity – while possible – is not currently anywhere in sight?
What the Drone Registration Requirements Probably Mean for Artists
In light of all the trouble that drones have apparently been causing, and considering the FAA’s bold move to require drone registration on their devices, we think it’s safe to assume that the FAA’s original proposed drone regulations may be altered so that the rules apply to hobbyists and recreational users alike. That means that whether you’ve been hired to film something specific, are creating a work that you aim to sell, or are simply goofing around, you will probably be held liable to the FAA’s drone law – which means you’ll have to take extra care before you fly.
To be certain you’re complying with drone regulations, always refer to the rules above.
What do you think about the new drone regulations?