Public Lands Permit Policy

Here's the latest on a US government permit change that affects anyone shooting on location outside on a majority of public lands. The public comment period is almost up (Oct 19th) so speak now. This was brought to my attention by fine art photographer Nelcha Cross. Here's her report:

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. Nominally, at least, there should be little change from current policy. The devil is always in the details, however. Under the proposed rule, still photography would require a permit if:

It uses model(s), sets(s), or prop(s) that are not a part of the location's natural or cultural resources or administrative facilities.

Unfortunately, the proposed rule doesn't define "model" or "prop." Common sense suggests that a model is "one who is employed to display clothes or to appear in displays of other merchandise," and a prop is perhaps an item that might appear in a product advertisement. However, unlike current policies, the proposed rule does not tie models, sets, or props to commercial advertising. Without this connection, a model could be anyone who poses for a photographer, and a prop could be almost any object that isn't part of the natural landscape. Thus a tourist on public lands could require a permit to photograph her spouse or her car. I doubt that the intent is anything quite this drastic; however, I have seen comments from the NPS that the intent with the word "model" was a person or thing added to the natural or historic setting, and that the meaning of "model" could often be up to the whims of enforcement personnel.

The proposed rule makes some attempt to deal with this by excluding filming and photography by visitors from permit requirements, but unfortunately, it doesn't define visitor ...

Recommendation
--------------
The problems could be fixed by providing definitions for "model" and "prop." The definitions might read;

Model means a person who poses for filming, photography, videotaping, or recording by other means for the purpose of promoting the sale or use of a product or service.

Prop means an object such as a vehicle, boat, article of clothing, food and beverage product, or other commercial article filmed, photographed, videotaped, or recorded by other means to promote its sale or use.

These definitions are simplified versions of ones provided by the Forest Service and BLM after the enactment of Public Law 106-206; I suspect they connected the terms to commercial advertising because they could not think of any other way to provide adequate definitions. Quite honestly, neither can I. Adding these or similar definitions would ensure that the new rules are the same as those that have been in effect for well over a decade.

Requiring, in essence, a permit for photography for commercial advertising isn't quite the same as requiring a permit simply because a photographer may sell the images, which is impossible to determine unless enforcement personnel can read the photographer's mind. The activity involved in photography for commercial advertising is much like pornography for Potter Stewart: it may be difficult to define, but it's usually easy to recognize.

Stated otherwise: without the connection of models and props to commercial advertising, we would have less protection than we currently have.

I would go one step further to make the rule simpler and tidier by requiring permits for commercial filming and photography, and defining commercial photography to the effect of

Commercial photography means the recording of a still image on film, electronic, magnetic, or other media and using models, props, or sets that are not a part of the location's natural or cultural resources or administrative facilities.

The world will not end if this rule is issued as proposed; however, photographers may have less protection than under current rules. A few simple changes could eliminate the problems. Federal agencies do pay
attention if enough comments are received; in 2005 the proposed rule for permits in the U.S. National Arboretum was changed in response to just over 100 comments.

Comment Period and Contact Information
--------------------------------------
The public comment period for the rule extends to 19 October 2007.

The part of the Federal Register in which the proposed rule appear can be obtained from the GPO Access website at; search for "filming".

The relevant result is in the Federal Register on 20 August 2007 (fr20au07P)