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The Law of Drone Photography

Drone Photography Law

Drone photography discussions seem to abound nowadays across the Internet. Today, for around $1600 anyone can buy a drone like the Turbo Ace X830-D, attach a Go Pro Hero 3 Black edition camera, and have an aerial studio which can fly around for 25 minutes, taking either 12 megapixel stills or 4K video. Compare that cost to renting a helicopter, the only way a photographer could get that aerial shot of the newly renovated waterfront mansion recently put on the market for $8 million, or the video flyover of a sailboat teeming with beautiful models wearing Ralph Lauren’s newest clothing line.

Drones have the potential to change the photography world, whether commercial product work or even journalism. Videos of disasters, riots or other important events can be captured with ease, enabling a wealth of information not easily available. For example, In 2012, a drone flying near Dallas discovered a Columbia Meat packing plant illegally dumping pig’s blood into the Trinity River. Last week, archaeologists announced that they used a drone to uncover to uncover ancient New Mexico village and let’s not forget Amazon Prime Air, the upcoming drone-based system that Amazon says will allow package delivery in thirty minutes.

All hail the new era of aerial photography, except for one small hiccup; the law surrounding drones is in limbo; making it hard to know where and when we can fly these technological marvels. The Agency responsible for drone regulation is the Federal Aviation Administration (FAA), which has been guided by Administration rules, which prohibit commercial use of small unmanned aircraft without a pilot’s license, a certified aircraft and approval from the agency. However, permits are available only on a very limited basis; mostly for government and law enforcement agencies, not commercial enterprises or journalists.

Those rules don’t apply to drones however prompting Congress to mandate that the FAA write new rules for authorizing of the use of drones by September 2015, though a House committee has said the deadline might be unrealistic. Currently, it has contracted with six field sites around the U.S. to test various issues, like technology, safety, and traffic control, but it’s not clear when the tests will happen or whether a clear policy will result from them.

Congress has mandated that the FAA write new rules for authorizing of the use of drones by September 2015.

Without a clear guide to using aerial drones and the ability to receive the required permits, commercial drone use was effectively grounded. Then last March, a Federal Judge ruled that since the FAA had no clear rules against using drones, they were legal to fly in the U.S. The case involved Raphael Pirker, a filmmaker, who was fined by the FAA for using drones to film a commercial at the University of Virginia. (This is the only case involving aerial camera drones that the FAA has initiated). Pirker fought the case claiming that the fine was based on a policy notice that the FAA had put out in 2007, which he said was not legally binding as it had not been out for public comment. He also argued that drones fell under “model aircraft” rules, which had never been regulated by the FAA. The judge agreed but the FAA has appealed the ruling.

Pirker doesn’t apply to non-commercial uses, so that leaves amateurs interested in drone photography with little guidance but no policy against drone use, sparking a spike in drone sales. Given the lack of guidance, a place that drone operators feel comfortable using their flying vehicles is throughout the open spaces of the National Park System. Amateur drone photography has become such a problem in the Parks though, that the National Park Service has made it illegal. Flying a drone subjects individuals to six months imprisonment and/or a $5,000 fine. Like the FAA in Pirker, the Parks Service has tried to use older rules to encompass drones. The NPS statute states that it is illegal to “deliver or retrieve a person or object by parachute, helicopter, or other airborne means . . . ,” which may seem on point. But that clause falls under a section heading entitled Aircraft and Delivery. Aircraft is defined as a device that is used or intended to be used for human flight in the air, including powerless flight. As drones are unmanned powered vehicles, the rule may not encompass drones as the NPS believes.

Whether we see drones become a ubiquitous feature of our skies remains to be seen. Besides the FAA rules, there are a host of other issues that must be addressed, from privacy to zoning. Ultimately though, in order for drones to become a staple commodity will depend on the big question that few people are asking: do we want drones flying around everywhere. While there are certainly benefits to some, the rules will also allow drones for less desirable uses such as by the paparazzi. Also, how will people feel when drones are not easily spotted, the technology allowing the drones to be reduced to the size of small birds or even insects?

Does that change your attitude toward drone photography? Let us know.


About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

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  • Thanks for the article. I thought the use is forbidden for commercial activities ? This clarifies a lot and makes me feel a bit safer making drone aerial pictures of homes for sale by my Realtor wife.

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