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Thread: Proposed New Rules for Photography on U.S. Public Lands

  1. #1

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    Proposed New Rules for Photography on U.S. Public Lands

    U.S. agencies have proposed two new rules affecting permits for still photography on public lands. One of the rules needs revision; the other is probably acceptable but could be improved. Both rules are open to public comment until the middle of October 2007.

    Rule Proposed by the Bureau of Reclamation
    The U.S. Bureau of Reclamation propose changes to 43 CFR 249 that would require a permit for "commercial filming and photography"; however they do not define commercial photography, so the proposal could be in conflict with Public Law 106-206. If enough comments are received, the rule most likely will be changed, as happened in 2005 with the rule for permits in the U.S. National Arboretum. The best solution would be for the USBR to use the same rule as the BLM, FWS, and NPS, which is described below.

    Rule Proposed by the BLM, FWS, and NPS
    The U.S Bureau of Land Management, the U.S. National Park Service, and the U.S. Fish and Wildlife Service propose changes to 43 CFR Part 5 that would require a permit for still photography using models, sets, or props, in much the same manner as Public Law 106-206. The proposed rule is a straightforward implementation of the law; nominally, at least, there should be little change from current policy.

    The rule is probably acceptable as proposed, but the wording could be improved, so comments still may be appropriate. "Models," "sets," and "props" are not defined, and may be subject to varying interpretations by enforcement personnel. Unlike the current 36 CFR 5.5(b), which has governed photography in National Parks and which was intended to be the model for the new requirements, neither the legislation nor the proposed rule appears to require a permit for "articles of commerce [photographed] for the purpose of commercial advertising." I simply cannot imagine any DOI agency allowing such photography (e.g., an automobile advertisement) without a permit, and cannot see how an agency could apply the proposed rule to such photography without expanding the definition of model or prop. I would have no problem with requiring a permit for the same conditions that require a permit today, but I would much prefer to have all the conditions explicitly stated rather than leave interpretation to enforcement personnel.

    The rule would be easier to follow if the treatment of filming and photography were more similar; it's much easier to refer to "commercial photography" than "photography that involves ..."

    I would address both issues by requiring permits for both commercial filming and commercial photography, defining the latter to the effect of

    Commercial photography means digital or film recording of a still image that uses models, props, sets, or articles of commerce for the purpose of commercial advertising.
    Since this is almost a direct rearrangement of the current 36 CFR 5.5(b) that governs photography in National Parks, it would seem the approach most likely to ensure that current policy is maintained. The definition would also seem a good model for other jurisdictions.

    Comment Period and Contact Information
    The public comment period for the USBR rule extends to 16 October 2007; the comment period for the BLM/FWS/NPS rule extends to 19 October 2007.

    The parts of the Federal Register in which these proposed rules appear can be obtained from the GPO Access web site at http://www.gpoaccess.gov/fr/index.html; search for "filming".

    The relevant results are in the Federal Register on 18 July 2007 (fr18jy07P) for the USBR, and 20 August 2007 (fr20au07P) for the other agencies.

  2. #2
    Kirk Gittings's Avatar
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    Re: Proposed New Rules for Photography on U.S. Public Lands

    Commercial photography means digital or film recording of a still image that uses models, props, sets, or articles of commerce for the purpose of commercial advertising.
    This language would help clear up some of the confused interpretations that I have encountered.
    Thanks,
    Kirk

    at age 73:
    "The woods are lovely, dark and deep,
    But I have promises to keep,
    And miles to go before I sleep,
    And miles to go before I sleep"

  3. #3

    Re: Proposed New Rules for Photography on U.S. Public Lands

    however they do not define commercial photography
    This is one of the things I miss the most about the US. The possibility for the citizenship to affect the outcome of the laws. Here in Mexico thes bufoons pass a law and nobody has a say in it.

    If you guys can organize and head this off it is imperative you have a definition and what is meant EXACTLY by commercial photography, you don't want to happen to you what happened here in Mexico, where if you are using a tripod you are a professional and therefore doing "comercial" work and have to get a permit....which is now $300 per site.

    I wish you all good luck.

  4. #4

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    Re: Proposed New Rules for Photography on U.S. Public Lands

    Did you contact the USBR or BLM for additional clarification? Looking at their Web page on photography and filming I don't see any difference from other DOI agenies, especially the NPS' rules. I suspect it's a DOI requirement for these rules, and leave it open to flexibility at the local level between the office and photographer(s).

    I think if you surveyed photographers I doubt there would be a concensus about specifics, and asking a government agency to write an all encompassing rule that is clear in the face of all the possibilities is a bit much since there would always be exceptions. I suspect these rules passed the DOI legal offices without be so specific to be ruled illegal.

    I would agree they would require a permit for a photo shoot for a car ad if it obviously fit within the rules by creating a unique situation for the shoot that imposes upon others' access or enjoyment of the place, uses props, or has a crew. I don't have a problem requiring a permit for this since it has a specific purpose other than the individual enjoyment of the place, namely for the commercial purpose of advertising. They're not taking photos for the place but the product using the place to enhance the image.
    --Scott--

    Scott M. Knowles, MS-Geography
    scott@wsrphoto.com

    "All things merge into one, and a river flows through it."
    - Norman MacLean

  5. #5

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    Re: Proposed New Rules for Photography on U.S. Public Lands

    It's simply amazing, we are in a bad war that we are borrowing money to fight, the dollar is in the dumper and we have an unprecedented high school drop out rate and and and and and. The government is wasting time trying to figure out rules for photography??!! We should clean this entire rat pack of government out and start over...EC

  6. #6

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    Re: Proposed New Rules for Photography on U.S. Public Lands

    Politicians will still be politicians, it's why there are so many traffic cops while people are afraid to walk down streets in the city for lack of patrols.

    Here in the UK the previous head of the Metropolitan police (biggest force in the UK in charge of London, sorry I can't remember his name, he's been the the one in charge of the independant Diana inquery since he retired) when he was appointed to the Newcastle area took one look at the inner city situation and pulled almost every member of the non essential branches of the police away from their cushy jobs and put them on the street. The crime figures after that were what landed him the biggest job of all in London.

    In London they tried to make it illegal to take photos in public parks for fear of sickos. If they put the efforts into the courts and giving the police the funding and direction to reduce crime then the city would be a far better place to live in, then we can deal with the weirdos. But when people are being shot and knifed all that idiot Ken Livingston can think about is new ways to charge motorists and annoy photographers. A PC world gone mad.

    Aaaah, that feels so much better now...

  7. #7

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    Re: Proposed New Rules for Photography on U.S. Public Lands

    One of the sad things about the U.S. is that often when we have the chance to affect the outcome of the laws, we do nothing. More than one rule affecting photography has been issued with a comment in the Federal Register to the effect of, "The final rule is issued as proposed because no comments were received." I don't suggest that our right to photograph is in danger if either or both of these rules are issued as written. Statutory law (Public Law 106-206) prohibits requiring a permit for photography that doesn't involve models or props, and any administrative rule in conflict with that law will not hold up. It would make for less possible hassle if the USBR rule were fixed prior to issue, however. As discussed, though the second rule is probably workable as proposed, but it nonetheless could be improved. If anyone thinks comment is indicated, now is the time to make it, because the opportunity to do so isn't likely to come again for quite some time.

    The policies on the BLM and NPS web site links almost directly repeat the language of Public Law 106-206; you may note the remarkable resemblance to the proposed rule. Again, the possibly sticky issue is that I don't see how the proposed rule could be cited to require a permit for an automobile product shoot not involving human models without expanding the definitions of some of the terms beyond there common meanings. I'd much rather state all the conditions that actually will require a permit (it's not that difficult) than close the loophole with unofficial redefinitions or leave it to the discretion of enforcement personnel. Is a model anyone who poses for a photograph? Does a prop include an automobile? Some of a photographer's equipment? I don't really think there is a problem with the proposing agencies or with the vast majority of enforcement personnel. As always, the problem is with a few folks who might make the most expansive possible interpretation of conditions that require a permit. Slight rewording of the proposed rule could largely preclude such creativity.

    The photography rules under discussion long predate the war and even the current occupant of the White House (Public Law 106-206 was signed by Clinton on 26 May, 2000; see http://www.largeformatphotography.info/photo-permits/ for a brief history). I haven't updated that article since 2004 because I have been waiting for the rule now proposed.

    Quite honestly, I'm not optimistic that the BLM/FWS/NPS will incorporate my suggestions. If they get enough comments, however, they most likely will state why the suggested changes were not needed; such statements may, in effect, clarify the meanings of some of the terms that I've mentioned. Though not quite as tidy as having everything covered in the rule itself, a statement in the Federal Register would seem far better than private assurances or mention on an agency web site.

  8. #8

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    Re: Proposed New Rules for Photography on U.S. Public Lands

    I think Jeff makes some good points. I will say, however, after working in a government agency for about 28 years, writing all-encompassing policies, rules and regulations becomes self-defeating work because the languages either gets too general or so expansive to be meaningless. I see in the the "new" rules as just a rewrite of old rules, meaning nothing has really changed, except they're now comliant with laws, which was likely the reason for the change.

    I think you'll likely find all the decisions about what's legal or not is local and left to the local land/resource manager. And it will depend on how much your work interfers with the their operation, the public's access and enjoyment of the place and the impact on the land/resource. For example if you park a car outside the desginated parking to do a photo shoot, you'll likely be asked to find yourself talking to the manager and getting a permit. I know this is the case in Mt. Rainier and you'll get your car towed if you don't move it, because they simply have too many visitors for too few spaces.

    I understand photographers' interest to shoot when and where they want, but the key to me is that you're on a public resource, managed for that purpose, and we're just one of many visitors. They're trying to give the widest latitude and flexibility to the local managers while defining the outer limit. And it depends on the photo work being "commercial" and using more than one photographer can carry. And some of the staff are also photographers for work or themselves, so don't assume they aren't informed.

    Just my thoughts, and Jeff's Web page is an excellent overview and reference.
    --Scott--

    Scott M. Knowles, MS-Geography
    scott@wsrphoto.com

    "All things merge into one, and a river flows through it."
    - Norman MacLean

  9. #9

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    Re: Proposed New Rules for Photography on U.S. Public Lands

    Quote Originally Posted by Scott Knowles View Post
    ... I think you'll likely find all the decisions about what's legal or not is local and left to the local land/resource manager. And it will depend on how much your work interfers with the their operation, the public's access and enjoyment of the place and the impact on the land/resource ... They're trying to give the widest latitude and flexibility to the local managers while defining the outer limit.
    I wish I felt I could trust in universal good judgement. I've been lucky most times and had no real hassels, but too many photographers have had encounters with folks who act as if their job was to issue the most restrictive possible interpretations within the rules. Now that terrorism is on our minds, and the rules are functionally out the window, any official can pretty much duck behind the excuse that he/she made a decision "to be on the safe side" and will face no criticism.

    I don't feel freer or safer. I feel like some of my options have been curtailed with no corresponding benefit.

    Quote Originally Posted by Scott Knowles View Post
    And it depends on the photo work being "commercial" and using more than one photographer can carry.
    I think the definition must include wording that is absolutely clear that commercial means the photographs being taken will be actually sold. I know, that sounds like redundancy, but some shots are taken exclusively for personal usage and are not for sale, but have the look and style of "commercial" work. Absent a proviso that work "for sale" needs a permit, I can easily see permits being demanded for or any work requiring a tripod ... requiring a large camera ... any competent work.

    Heck, this is the large format forum. I can't carry a full kit of monorails and tripods and film holders and filters etc about singlehanded. I can easily see a non-photographer mistaking a landscape shoot for a piece of commercial work, absent the "for sale" part of a definition. It doesn't even need malice on the part of an official to be a losing proposition for a photographer who has all good intent and no commerce in mind.

    Best,

    C

  10. #10
    tim atherton's Avatar
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    Re: Proposed New Rules for Photography on U.S. Public Lands

    Quote Originally Posted by CG View Post
    I think the definition must include wording that is absolutely clear that commercial means the photographs being taken will be actually sold. I know, that sounds like redundancy, but some shots are taken exclusively for personal usage and are not for sale, but have the look and style of "commercial" work. Absent a proviso that work "for sale" needs a permit, I can easily see permits being demanded for or any work requiring a tripod ... requiring a large camera ... any competent work.

    Heck, this is the large format forum. I can't carry a full kit of monorails and tripods and film holders and filters etc about singlehanded. I can easily see a non-photographer mistaking a landscape shoot for a piece of commercial work, absent the "for sale" part of a definition. It doesn't even need malice on the part of an official to be a losing proposition for a photographer who has all good intent and no commerce in mind.

    C
    No no no... This is the crux of the issue.

    The overarching Congressional statute on which these regulations are based requires that photography be allowed without a permit even if it is commercial in nature and for sale (which, btw, is as it how should be imo).

    What these regulations are trying to do is define a section of commercial photography which does require a permit.

    That is based not on whether the photography will ultimately be for sale, but on whether taking such photography disrupts users and staff and requires extra resources or which brings in other things - props and products - to be photographed within the park setting

    (essentially they are trying to define advertising photography - trouble is it's a bit broader than that - one of Greg Crewdson art shoots would also fit - and/or photography which requires special access)

    Despite a slight fuzziness around the edges, this is still by far the best definition they have come up so far with that fits these criteria:

    "Commercial photography means digital or film recording of a still image that uses models, props, sets, or articles of commerce for the purpose of commercial advertising."


    Among a few other things any of these regulations have to comply with the following definition, which does not allow for permits or fees for commercial or any other kind of photography except in very specific cases:

    (c) STILL PHOTOGRAPHY—

    (1) Except as provided in paragraph (2), the Secretary shall not require a permit nor assess a fee for still photography on lands administered by the Secretary if such photography takes place where members of the public are generally allowed. The Secretary may require a permit, fee, or both, if such photography takes place at other locations where members of the public are generally not allowed, or where additional administrative costs are likely.

    (2) The Secretary shall require and shall establish a reasonable fee for still photography that uses models or props which are not a part of the site’s natural or cultural resources or administrative facilities.
    You'd be amazed how small the demand is for pictures of trees... - Fred Astaire to Audrey Hepburn

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