By Sean Fitzgerald, Co-Chair of NANPA Advocacy Committee
If you mention the topic of commercial film permits to most professional photographers, the response may range from an irritated growl to a wall of invective that would make a sailor blush. And for good reason, too. The statutes and regulations governing when a photographer needs a commercial permit are confusing at best and vary depending on factors such as whether or not the activity involves stills or video, is considered commercial filming, uses props, sets or models, and more. They are sometimes even prone to inconsistent and arbitrary application and even abuse when applied by park rangers and administrators in the real world
For those reasons, NANPA has long advocated for reform and simplification of the commercial film and still photography permit laws and regulations.
First Amendment and Price v. Barr
There is another problem with requiring that Americans obtain a commercial permit for photography or videography — the First Amendment right to free expression.
A recent federal court case out of Washington D.C., Price v. Barr, has finally addressed those First Amendment concerns. That case involved a documentary filmmaker who shot some footage at a national historic site for inclusion in a documentary. He did not have a commercial filming permit and was ticketed after the film’s release. With the help of an excellent legal counsel, he challenged the constitutionality of the statute that authorizes commercial film permits.
In in support of the filmmaker, our friends at the National Press Photographers Association (NPPA) wrote an outstanding “amicus curiae” (or “friend of the court” brief) that urged the court to strike down the commercial filming statute on constitutional grounds. NANPA signed on in support and helped craft the brief. I gave NPPA a number of examples of how arbitrary the commercial permitting statute is when applied in the real world for nature photographers.
And we won!
Judge Colleen Kollar-Kotelly struck down the federal statute as it applies to videography, finding that “[t]he government may not impose a charge for the enjoyment of a right granted by the federal constitution, including the First Amendment right to free expression.” The court pointed in part to the real world problems that NANPA helped outline in the amicus brief.
Judge Kollar-Kotelly issued a permanent injunction halting the permit and fee requirements while noting that “a more targeted permitting regime for commercial filming, which is more closely connected to the threat posed by large groups and heavy filming equipment, may pass constitutional muster in the future.”
We do not yet know if the government will appeal the district court opinion but has not done so yet. For more on Price v. Barr see here.
National Park Service issues Interim Guidance
Since Price v. Barr was decided, NANPA has been waiting to see how the Department of the Interior, Department of Agriculture, and other agencies that manage federal and state lands might respond.
On February 21, the National Park Service (NPS) issued an Interim Guidance that will stay in place until it can issue formal regulations. We have not yet seen similar interim guidance from other federal agencies, but expect they will take a similar position.
Permit not needed for “low-impact filming”
Following Judge Kollar-Kotelly’s advice, NPS’s Interim Guidance specifies that whether a filming permit is required is based only on the impact and disturbance to the park itself. No permit is required for “low-impact filming,” which NPS defines “as outdoor filming activities in areas open to the public, except areas managed as wilderness, involving five people or less and equipment that will be carried at all times, except for small tripods used to hold cameras”.
NPS’s Interim Guidance makes one exception for the 44 million acres of lands it manages as “wilderness areas” by noting that “[e]xcept for casual filming by visitors, special use permits for filming are required for all filming activities in wilderness areas, no matter the group size or equipment used”.
This Interim Guidance is a welcome step in a more reasonable direction. “Low-impact” videographers who shoot video for stock footage and potential licensing would no longer need a commercial filming permit. And low-impact photographers on federal lands can no longer be targeted by park rangers simply because they look like professionals who might also be shooting video for commercial purposes.
Some issues remain unclear and will need clarification. For example:
- The Interim Guidance makes no mention of the use of props. Are they acceptable but only as long as they don’t touch the ground?
- The Interim Guidance emphasizes that “equipment” must be “carried at all times”. The goal is obviously to avoid any damage to the land, but this is rather extreme. What might happen if an otherwise “low-impact” videographer simply (and carefully) sets their backpack on the ground? Would a nearby park ranger then walk up and issue a ticket?
Non-low impact filming
The Interim Guidance also lists several general activities that do not qualify as “low impact filming” and may require a special use permit. For example, a permit may be required when filming in locations like campgrounds, visitor areas or in sensitive locations. In such situations, the videographer should contact the park in writing at least ten (10) days before the filming occurs.
Still photography regulations not changed
Permits for still photography were not directly at issue in Price v. Barr and thus the court only struck down the statutory requirements pertaining to commercial filming (or videography). NPS now asserts that since Price v. Barr did not address still photography directly that its existing regulations for permitting of still photography still apply. This is debatable, but NPS may feel constrained to maintain the current regulations until another court explicitly applies Price v. Barr to still photography or Congress amends the statute.
Unfortunately, that means that for the foreseeable future, we have one set of standards for filming/videography and a completely different one for still photography. The statute pertaining to still photography bases its need for a permit primarily on whether an outside model, set or prop is used, as long as the photography takes place in a public area and does not involve administrative oversight.
The resulting distinction is wholly arbitrary and will result in absurd results. For example, a “low-impact” videographer could shoot video using four other people as actors or models or helpers, and not need a permit, but if they took a still, of that same scene, they would need a permit.
The differing standards will create inevitable confusion in actual practice, as well. For example, will the permit apply to how the work is originally taken, or to how it is eventually used in the finished product? It is not difficult to come up with problematic scenarios:
- What happens if a low impact filmmaker (who does not need a permit for such videography) takes and uses a still photograph that includes a prop or model in their finished film without having obtained a still photography permit?
- Is a permit needed for a time-lapse video that includes a prop like a tent or a model? Time-lapse videos are simply still images combined into a video. Would a still photography permit be required or would NPS treat a time-lapse as a “low-impact” video?
There is no need for such confusion. NANPA would like to see a single, simple, “low impact” rule that applies equally to both videography and still photography.
Impact on photo workshops unclear
It is not yet clear whether and how the holding in Price v. Barr might apply to the current commercial use authorizations (permits) that are required for photo workshops under current NPS regulations. NPS obliquely mentions the issue in in its Interim Guidance by stating that “[i]f you are planning a photography workshop, you may need a commercial use authorization.” Until NPS clarifies its stance, professional photographers should assume that a permit is still required.
Balancing First Amendment rights vs. land stewardship
NANPA’s mission is to protect and celebrate the natural world using photography as a means of expression. We believe that such expression is protected by the First Amendment and that the government should not charge a fee for the exercise of that right.
At the same time, NANPA strongly believes that all photographers have a duty to act as responsible stewards while in the field and that the right to photograph (or film) on public lands is not absolute. Land managers should be fully empowered to protect lands and require permits for activities that involve special access, require administrative oversight, or may result in tangible impact or harm to the land. Basing permits on such impacts rather than commerce is a much more reasonable way to balance those interests.
NANPA will keep pushing for clarification and simplification
Price v. Barr is a landmark opinion for professional photographers and videographers, but more must be done to further simplify and clarify permitting systems. NANPA will continue its efforts to reform permitting laws and regulations to help strike the proper balance.
Share your thoughts and experiences with us by sending them to NANPA at advocacy@nanpa.org.
Editor’s Note: For more information on these developments, see this article in the Billings Gazette, which quotes Sean Fitzgerald, and this article in the Idaho Press newspaper.
