Forest Service Chief Issues Directive on Photography Permits

Aspens on Color - Copyright Carolyn E. Wright

On November 4, 2014, U.S. Forest Service Chief Thomas Tidwell issued a directive on commercial filming and photography permits.

He included lots of good nuggets in this directive. The most important to nature photographers is:

I also want to emphasize that commercial photography only requires a permit if the photography takes place at locations where members of the public are not allowed, or uses models, sets, or props.

Commercial film and photography permit fees should be primarily viewed as land-use fees. If the activity presents no more impact on the land than that of the general public, then it shall be exempt from permit requirements.

This follows past guidelines and regulations from the National Parks Service and Department of the Interior. BRAVO!

While these directives could change with a change of a new Chief, and while we probably need more clarification of what comprises models, sets, or props, this is a good turn of events.

HT: Jeff Conrad

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Tax Information for Photographers

Dolphin Jump Mirror - Copyright Carolyn E. Wright

Taxes are a headache for everyone.  But photographers often have special tax issues to consider. How do you find out what applies to you? Go to your states tax website and search for “photographers.”

For example, conducting an Internet search on “Nevada state tax,” this website is one of the top options:

After entering “photographers” in the search box in the upper right hand, one of the results leads to this: where you can get important information.

The IRS website also offers information for photographers.

Spend some time learning about your tax obligations so that you can keep on shooting!


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Thank you for your service, Veterans!

Eagle Portrait in Bush - Copyright Carolyn E. Wright

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Including Dates of Publications with Your Registered Photos


Fly Fishing at Lake-Copyright Carolyn E. Wright

As discussed in this August 19, 2014, blog entry,  the U.S. Copyright Office has issued a public draft of the Compendium of U.S. Copyright Office Practices, Third Edition.

In Section 1116.1 of the Compendium, entitled “Eligibility Requirements” for “Group Registration of Published Photographs” (Chapter 1100, page 56) it states:

If the applicant provides a range of publication dates in the application and identifies the specific date of publication in the deposit copies, the Office will retain the deposit material for the full term of the copyright. In all other cases, the deposit copies may be discarded within ten years after the effective date of registration.

The date of publication for each photograph may appear in the online public record if the applicant submits the claim through the electronic registration system and provides publication dates in the online application. Publication dates will not appear in the online public record if the applicant submits a paper application, although they will appear in the certificate of registration if the applicant provides that information on Form GR/PPh/CON

This is another good reason to include the dates of publication with photos that you register.

HT: Leslie Burns

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Do You Need a Permit to Photograph in Wilderness Areas?

Wild Stallion Fight - © 2014 Carolyn E. Wright (Taken on BLM Land)

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 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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Photographer’s Patents for Event Photos Declared Invalid

Hockey Play - Copyright Carolyn E. Wright

While another form of intellectual property, patents are different than copyrights. In the United States, a patent is an intellectual property right granted by the government “to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States” for a limited time in exchange for public disclosure of the invention when the patent is granted.

There are three types of patents. Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof. Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture. Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant. Patents are important to protect the ideas of inventors, including such patent holders as Nikon and Canon.

Peter Wolf is the president of PhotoCrazy, a business engaged in the business of taking and providing event photographs for inspection, selection, and distribution via a computer network. In 2006 and 2011, Wolf obtained two patents for a “Process for Providing Event Photographs for Inspection, Solution and Distribution via a Computer Network” and one for “Advertising and Distribution Method for Event Photographs.” Wolf made claims against other photographers for infringing these patents, some of whom reportedly entered into licensing with Wolf. Wolf defended his right to do so on

In December 2013, Wolf filed a lawsuit against Capstone Photography for being “engaged in the business of providing event photographs for inspection, selection and distribution via the Internet.” Wolf also contended that Capstone was “offering to provide selected digital photographs with visual advertiser indicia within the photograph field to race participants.” Wolf asserted that these activities constituted willful
infringement of his three patents. A report of the case is available on

Capstone decided to fight the claims rather than to obtain a license. Mike Skelps of Capstone launched a website,, to explain his position and to seek donations.

In the lawsuit, Capstone filed a Motion for Judgment on the Pleadings, which, to the relief of many event photographers, the Court granted in its Order. In sum, the Court found that the patents were based on patent ineligible abstract ideas and lack an inventive concept that would make them patent eligible.

HT: Ken Shelton

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Texas Statute Limiting Photos of People Found To Be Unconstititional


Girl at Beach - Copyright Carolyn E. Wright

As addressed in my November 4, 2007, blog entry, photographers in Texas first had to consider whether their photography violated Section 21.15 of the Texas penal code, which states:

 A person commits an offense [of improper photography] if the person:

(1) photographs or by videotape or other electronic means visually records another:

(A) without the other person’s consent; and
(B) with intent to arouse or gratify the sexual desire of any person; or

(2) knowing the character and content of the photograph or recording, promotes a photograph or visual recording described by Subdivision (1).

Recently, however, Ronald Thompson was charged with violating part 1 of this statute for taking photos of women in swimsuits at a water park. He sought a writ of habeas corpus, asserting that the code section was “facially unconstitutional in violation of the freedom of speech guarantee of the First Amendment.” On appeal, the Texas Court of Criminal Appeals agreed and struck down the statute.

On behalf of Texas, its State Attorney presented many arguments in support of the statute, including that the taking of photographs is conduct and therefore not inherently expressive. The State claimed that “[p]hotography is essentially nothing more than making a chemical or electronic record of an arrangement of refracted electromagnetic radiation (light) at a given period of time.” The State also contended that the act of pushing the button on the camera to take a picture was not necessarily communicative.

In addition, the State asserted that the specific-intent requirement of the code did not invoke any First Amendment implications because the statute “regulates a person’s intent in creating a visual record and not the contents of the record itself.” Moreover, and significant to the right of privacy concerns for photographers, the State claimed that:

[T]he lack-of-consent requirement means that the statute does not apply to a photograph of a person in public as long as the photograph is of an area of that person that was exposed to the public. The State argues that any person who appears in public and exposes a certain part of the body to the public has necessarily consented to that part being photographed, and therefore, the improper-photography statute would not apply. But, the State reasons, if the person is not in public, or the photograph is of an area of the person that is not exposed to the public—such as the use of an X-Ray camera that can see through clothing or a photograph taken up a woman’s skirt—then the improper-photography statute would criminalize such behavior if done with the requisite intent. This construction of the term “consent,” the State argues, would negate any First Amendment implications of the statute.

But, after following the required Constitutional analysis, the Court disagreed with the State and held that “a person’s purposeful creation of photographs and visual recordings is entitled to the same First Amendment protection as the photographs and visual recordings themselves.” The First Amendment “is implicated by ‘constitutionally protected speech when that speech is coupled with constitutionally protected thought.'” Even when considering photographs of animal cruelty, obscenity, and child pornography, the U.S. Supreme Court has not questioned the expressive nature of visual images, saying that laws directed at quashing those images “run the risk of suppressing protected expression.”

In sum, when considering the State’s argument that the Constitution did not protect the “taking” of photographs, the Court found no difference between the process of creating the end product from the end product itself. It stated: “We conclude that a person’s purposeful creation of photographs and visual recordings is entitled to the same First Amendment protection as the photographs and visual recordings themselves.”

The Court finished its analogy with this significant note:

[In a prior case,] this Court expressed its incredulity that reasonable suspicion could arise from taking photographs in a public place: “Photographs are routinely taken of people in public places, including at public beaches, where bathing suits are also commonly worn, and at concerts, festivals, and sporting events.” “Taking photographs of people at such venues,” the Court said, “is not unusual, suspicious, or criminal.”

Yes, indeed!

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Must Read: Tax Court Ruling Is Seen as a Victory for Artists

Maroon Bells and Aspens - Copyright Carolyn E. Wright

As my post back in 2005 stated:

Regardless of whether your photography is a business or a hobby, you can use it to make a difference in your tax obligation. Specifically, if you are running a photography business, even part-time, the costs to run it can offset your income – not just the income from your photography business but from your day job, as well. If your photography is a hobby, then the costs to support it can be deducted from the income from your photography.

The New York Times reports that the United States Tax Court has confirmed this approach. Advice from a CPA is the best way to address your specific needs.

Update: Additional thoughts on the ruling are available at Forbes and from a law professor.


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Civil v. Criminal Copyright Infringement

Bear Cub Profile-Copyright Carolyn E. Wright

When photographers are infringed, they have the option of filing a lawsuit to recover damages directly from or an injunction against the infringer. But sometimes photographers want the infringer to be criminally prosecuted. What’s the difference?

“Civil” cases are when persons or organizations, such as a photographer, files a lawsuit directly against an alleged infringer, who also is a person or organization. “Criminal” cases are when a state or the federal government files suit against a person or organization for an action that is considered to be harmful to society as a whole. Sometimes, both criminal and civil suits can be filed for the same alleged act. For example, the State of California unsuccessfully prosecuted O.J. Simpson for murder. Later, the families of Nicole Brown Simpson and Ronald Goldman successfully sued O.J. Simpson in a civil lawsuit for wrongful death of their family members. While both criminal and civil defendants can be ordered to pay monetary damages, only criminal defendants can be incarcerated if found guilty.

So it makes sense that infringers should be concerned about both criminal and civil liability. But not every infringement is a criminal offense. Throughout the history of copyright in the United States, criminal copyright penalties have been the exception rather than the rule. Although criminal copyright law has greatly expanded the scope of the conduct it penalizes over the past century, criminal sanctions continue to apply only to certain types of infringement.

The Copyright Act specifically discusses criminal copyright infringement at 17 U.S.C. § 506. Specifically, copyright infringement is a crime if the defendant infringed willfully and did so either:

(A) for purposes of commercial advantage or private financial gain;

(B) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or

(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.

Similar to civil violations of 17 USC 1201, the Copyright Act states that it is a crime for:

(c) Fraudulent Copyright Notice. — Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500.

(d) Fraudulent Removal of Copyright Notice. — Any person who, with fraudulent intent, removes or alters any notice of copyright appearing on a copy of a copyrighted work shall be fined not more than $2,500.

Criminal copyright infringement is punishable in a variety of ways, depending on the infringing act. 18 U.S.C. § 2319.

The U.S. Department of Justice has a manual for United States Attorneys on “Prosecuting Intellectual Property Crimes.” Several sections are helpful to understand copyright law as a whole. While most infringements of photographers works won’t lead to criminal prosecution, photographers can protect their copyrights in many other ways.

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Oversight Hearing on U.S. Copyright Office, Thursday, September 18

The House Subcommittee on the Courts, Intellectual Property, and the Internet will hold an oversight hearing on the U.S. Copyright Office Thursday, September 18th at 2:00 pm eastern time. Register Maria A. Pallante will testify.


Judiciary Committee Chairman Bob Goodlatte (R-Va.) and IP Subcommittee Chairman Howard Coble (R-N.C.) released the following statement in advance of Thursday’s hearing: “The Copyright Office was created by Congress nearly 120 years ago. The Office oversees hundreds of thousands of copyright registrations each year and plays an increasingly prominent role in promoting domestic and global commercial activity. These registrations go to the heart of individual American creativity and innovation. At Thursday’s oversight hearing, the Committee will examine the practices and organization of the Copyright Office to ensure it is equipped to keep pace with the digital age and has what it needs to serve the American people in the 21st century.”


The hearing will take place in 2141 Rayburn and will be webcast live at

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