Wild Stallion Fight – © 2014 Carolyn E. Wright (Taken on BLM Land)
This is a guest blog entry by Photographer Jeff Conrad (check his great Sun/Moon Calculator and article on Depth of Field), who has followed the legislation on permits to photograph on public lands for years, including this blog post in September 2013. Thanks for his clarifications and information on the recent proposal about photographing in wilderness areas below:
Permits to Photograph in Wilderness Areas?
By Jeff Conrad
A recent proposal (Federal Register, September 4, 2014) to revise the Forest Service Handbook has attracted considerable attention in the media, and has raised concerns among journalists and some amateur still photographers. Some articles have suggested that any filming or photography in a wilderness area would require an expensive permit (which might not even be issued), and that photographing without such permit could result in a $1500 fine. A petition on change.org opposing the proposal has gathered over 35,000 signatures.
The effect of this proposal is actually quite minor, serving mainly to clarify current wording that allows a permit to be issued
If it is to occur in a Congressionally designated wilderness area, and the activity contributes to the purposes for which the wilderness area was established.
The proposed wording is a considerable improvement, but some of the language is still vague, and should be clarified.
Although the impact of the proposal per se is minor, there are some issues with the overall FS rules for filming and photography; these rules apply to all National Forest System lands rather than just to wilderness areas, so their effects are far reaching. Because they result from regulation and policy outside the scope of the proposal, they cannot be addressed simply by revising the proposal.
Issues with the Proposal
The proposal essentially grants low-level enforcement personnel unfettered discretion to deny a permit. At the very least, it should be made clear that this does not apply to members of the press; preferably, some additional safeguards should be added reduce the chances of arbitrary issuance and denial.
The proposal specifically excludes “noncommercial still photography,” but the term is not defined, inviting photographers and enforcement personnel to synthesize a definition—probably not a good idea. This section does not come into play unless a permit is already required; accordingly, the exclusion appears to be without effect, so it could simply be eliminated.
Issues with the Regulation and Other Parts of the FSH
That so many people have failed to see the proposal in the context of the overall regulatory scheme suggests that the scheme is not as clear as it should be. But there also are substantive issues, not the least of which is the potential infringement of freedom of the press. Thomas Tidwell, Chief of the Forest Service, has recently given assurances that permit requirements will not be imposed on the press. But as several people have noted, an assurance that is at odds with regulation or formal written policy is at best tenuous, subject to revocation on a whim or change of personnel. For Chief Tidwell’s assurance to be meaningful, the regulation–and parts of the FSH—must be revised.
Issue with 36 CFR 251.51: Freedom of the Press
The regulation specifically excludes the coverage of “breaking news” from permit requirements, implying that coverage of other news does require a permit. The exclusion should be extended to any bona fide journalism, including, at the very least, that involving established freelancers. Unless the regulation is revised, Chief Tidwell’s assurances ultimately will not be very reassuring.
Issues with Other Parts of FSH 2709.11
Definition of “Sets and Props”
Public Law 106-206 prohibits requiring a permit for still photography unless the photography involves the use of “models” or “props.” These terms had well-established meanings in the context of regulating photography, but for some reason, the FS provided new definitions of these terms in FSH 2709.11, Chapter 40, and added the use of “sets” to the permit criteria. The definitions give meanings these terms have never had; especially novel is the inclusion of equipment in the definition of “sets and props.” And that definition could be read as implying that anything other than camera and tripod is a prop; if this is indeed the intent, it is poorly thought out. Taken literally, it would require a permit for a flash, a camera and long lens supported by two tripods, a camera mounted on a monopod, a camera resting on a folded jacket, a handheld light meter, a small collapsible reflector or diffuser, a laptop or tablet computer, a smartphone with a photography app, a camera bag, and many similar items. It is difficult to believe that Congress intended for use of such items to require a permit and proof of insurance. Perhaps it could be argued that common sense would control, but this would essentially delegate determination of what is a “prop” to low-level enforcement personnel, offending due process and inviting conflict with photographers who may have quite different ideas of what is a “prop.” So far, the definition does not appear to have led to significant problems, but it may simply be a matter of time—much like assurances that permits will not be required for the press when regulation and policy suggest precisely the opposite.
In theory, lists of equipment that does and does not require a permit could be refined. But in practice, this has proven an exceedingly difficult task, and nearly every attempt at doing so has failed miserably. The problem could be far more easily fixed by revising the definitions to give the same effect as former 36 CFR 5.5(b) on which the still photography provisions of Pub. L. 106-206 were modeled. Although that regulation was not perfect, it worked well in national parks for almost 50 years.
Still vs. Motion Images
There is an additional complication: digital imaging technology has changed considerably since Pub. L. 106-206 became law in May 2000. Most current cameras—including those in cell phones—can record motion as well as still images, and in many cases, it is impossible to determine which type of image is being recorded. Consequently, the distinction between still and motion images is probably no longer a valid criterion for determining when a permit is required. The issue could be addressed by a suitable definition of “commercial filming”; a starting point might be to eliminate “the creation of a product for sale” as an element of the definition—or at least modify its description.
History of the Current Regulations and Directives
It is easy to forget that the original objective of the legislation that resulted in Pub. L. 106-206 was simply to eliminate a provision at 43 CFR Part 5 that prohibited the National Park Service from charging location fees for commercial filming. For some reason, the scope expanded far beyond this objective, delaying the legislative process and leading to language more complex than was needed, without really providing any additional benefit. Despite the many permutations in the wording of the various bills, the resulting statute was reasonably short and simple; it could have been quickly and easily implemented by incorporating the essence of former 36 CFR 5.5 on which the statute was modeled, with a few minor modifications. But the regulations eventually issued by the FS and the DOI agencies went far beyond what was needed to implement the statute, again providing little benefit over previous regulations. The simple regulation at 36 CFR 5.5 and similar policy for still photography in the Forest Service Manual at 2725.51 were replaced by regulations, directives, and other policies that are lengthy, convoluted, and in some cases ambiguous. Some common terms are redefined in a manner so novel that it is difficult to believe they represent what Congress intended. And the possibility that permits may be required for press coverage of anything other than breaking news would seem to infringe the freedom of the press.
Changing a regulation entails considerable effort, so it preferably is done infrequently. But here a change seems unavoidable if freedom of the press is to be ensured. The additional issues discussed above could also be addressed with reasonable additional effort. Given the threshold effort required for even a minor change, it would seem far more sensible to address all of the issues at once rather than to deal with each one separately.
In addition, NPPA sent a letter to the Chief of the U.S. Forest Service and NANPA has issued a statement on the matter. You may submit a formal comment on the proposal by December 3, 2014 (on the right hand side of the webpage, click Submit a Formal Comment). Gabby Salazar, NANPA’s President has suggested that you include in your comment, in your own words, points such as these (and to encourage other nature photographers to do the same):
I am a nature photographer, a member of NANPA, and a patron of our nation’s public lands, including USFS wilderness areas. The policies as proposed are overly vague and ambiguous and should be clarified as follows:
1. No permit or fee should be required to photograph in areas where the public in general is allowed.
2. No permit or fee should be required for photographers who use cameras on a speculative basis to photograph or film without an immediate market outlet for their work. Such activities are not a “commercial use or activity.”
3. No permit or fee should be required for news-gathering in general or for journalists on assignment for editorial purposes.
4. Permits and/or fees may be required when the photography or filming involves product or service advertisements, the use of models, actors, sets, or props, damage to resources, unacceptable health or safety risks, or significant disruption of normal visitor uses.
5. Overly vague and subjective policy criteria such as those found in 45.1c(5)(a), (b) and (c) should be eliminated from the proposed policies.
Thanks to Jeff, NANPA, and NPPA. Let’s all work together to protect photographers’ rights!
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