Photo Attorney

Dec 13, 2007

Report on Hearing for Proposed Photography Rules for Federal Lands

The House Committee on Natural Resources held a hearing yesterday, December 12, 2007, on the "New fees for Filming and Photography on Public Lands." The Department of the Interior ("DOI") has proposed regulations that will (among other things): define what is "commercial filming"; require permits for audio taping; and allow government agencies to deny permits for still photography that the DOI feels is "inappropriate." The hearing was broadcasted on the Committee's website.

The Committee first heard statements from Mitch Butler, Deputy Assistant Secretary for Fish and Wildlife and Parks, U.S. Department of the Interior, and Leslie Weldon, External Affairs Officer, Office of the Chief, U.S. Forest Service. The Committee then asked questions of the agency representatives.

The Committee next heard from Timothy Wheeler, President, Society of Environmental Journalists; Barbara S. Cochran, President, Radio-Television News Directors Association Tony Overman, President, National Press Photographers Association; Steven Scott, Chairman of the Board, Professional Outdoor Media Association; and Victor S. Perlman, General Counsel and Managing Director, American Society of Media Photographers, Inc. (ASMP). All of the statements by those who presented are available for review from links from their names listed on the Committee's website.

Butler appeared to struggle with his position and generally could not answer direct questions because, as he alleged, the DOI is still working on the regulations. One of the greatest concerns is that the regulations lack clearly-defined terms. For example, the regs state that filming is commercial (thus requiring a permit) when it is for a "market audience"; however, neither the regs nor could Butler tell the Committee what is a "market audience." An additional concern is that the agencies plan to rely on the individuals "on the ground" to determine when a permit should be issued and what should be charged for each permit.

One Committee member believes that if photographers are going to make money from the photographs taken on the federal lands, then photographers should pay to photograph there. Overman replied that the only consideration in determining when a permit is required should be whether the taking of the photo interferes with the park operations and natural resources - not the "ultimate purpose" or "end usage" for the photos. The presumption should be that still photography is allowed and a permit is needed only for the existing narrowly-defined exceptions - when a photographer uses props or models or needs access to non-public areas. In sum, Overman questioned why a journalist should be required to pay more than a visitor when their activities are the same.

Perlman asked the Committee how a park ranger can determine whether a photographer is a professional and whether an amateur who licenses a few photos on the side must get a permit. He asserted that the guidelines are too vague to allow for consistent interpretation from park employee to park employee. Further, he explained, most photographers are freelance and thus have no idea if they will ever license a photo from a shoot; even then, the license income is usually quite low.

In sum, the photography representatives appropriately and adequately presented the concerns about the regulations as they affect photographers and the Committee appeared to understand most of the issues. Subsequently, the Committee Chair, Nick J. Rahall (D-WV), issued a press release calling on the DOI to revise the regulation before the rule is finalized.

Rahall stated:
"Maintenance in our National Parks, listing of endangered species, fire preparedness, and responsible energy development are just a few examples of serious policy failures by the Bush Administration. Any hint that this new permit and fee structure could limit the free-flow of public information regarding the very real consequences of these failures is simply unacceptable."

"A reasonable return to the Federal Treasury for the commercial use of federal lands is one thing - trying to hide the damage done to those lands from the public under a mound of fees and permits is quite another."

Thanks to the photography associations who appeared before the Committee to protect the rights of photographers.