Do You Need a Commercial Use Permit to Post that Picture?

The National Forest Service’s Regulation of Commercial Filming and Photography

Christopher Bruno, Michigan Journal of Environmental and Administrative Law

How many followers do you have on your Instagram account? What about Facebook? When you post pictures, do 10 people see them, or do 10,000? Do you post videos to YouTube? Have many people watched them? How many “likes” do you have? Recent changes in the regulations concerning what is considered a “commercial use” of public lands has led to questions about whether or not snapping a picture of the Grand Canyon, or Yosemite Falls, could be considered commercial use. This blog analyzes the actual regulation and its background to shed light on the implications to everyday visitors, commercial users, and those who may fall into a commercial use “grey area.”

The United States Forest Service (USFS) is the government agency in charge of managing over 190 million acres of National Forest, which comprise a large part of the United State’s public lands.[1] As part of that responsibility, Forest Managers make decisions on what sort of activities are allowed in the forests. The mission of the USFS is to “sustain the health, diversity, and productivity of the Nation’s forests and grasslands to meet the needs of present and future generations.”[2] In order to accomplish this mission, managers must make decisions on a daily basis regarding who should receive authorization to use the public lands, and what that activity can consist of. For example, in fiscal year 2002 the Forest service issued 2,353 outfitting and guiding permits, 971 recreation event permits, 381 commercial filming permits, 315 still photography permits, and 642 noncommercial group use permits.[3]

Some conservation decisions that forest managers make are fairly straightforward. For example, an activity that unnecessarily damages a forest will probably not be allowed.[4] Other decisions may not be as clear. To help make these decisions, managers have a variety of statutory and agency tools to guide them. At the forefront is the Forest Service Handbook (FSH). According to the Forest Service, the FSH is the “principal source of specialized guidance” for managers when making decisions.[5]

One of the many programs that managers must oversee in protecting the National Forests is the special-use permitting system. This system is a series of guidelines and rules that have been put in place to control certain types of activities within National Forests. Generally, the special use program allows the commercial use of public lands when that use provides a benefit to the general public and protects public and natural resource values.[6]

For many years the Forest Service has restricted commercial uses within National Forests. Commercial filming and photography projects are required to meet certain criteria before they are approved.[7] The problem, however, is that in the current internet age it isn’t always clear whether or not something is commercial in nature.

Today, amateur users with only a small camera can gain wide followings of people. Pictures posted to Instagram, Facebook, and other social media accounts can reach millions of people.[8] Professional, semi-professional, and aspiring filmmakers are turning to YouTube and other streaming sites to post their work.[9] Sometimes this is to gain recognition in hopes of securing future work. Sometimes the artists are paid. Some are given non-monetary compensation such as sponsorships, gear, or other “perks.” Some people are so successful at gaining followers that they are sponsored by industry to post pictures using certain products.[10] Historically, one person with a camera has not been considered a “commercial use.” But, what if that one person’s photos or movies are incorporated into native advertising, the person is paid money by a business to post certain pictures on a social media sites, or otherwise uses the images to increase online brand recognition. Is that commercial use? Should it be? What business does the Forest Service have in regulating that sort of activity?

 

Public Law 106-206

On May 26, 2000 the 106th Congress passed Public Law 106-206. [11] The law directs the Secretary of the Interior and the Secretary of Agriculture to establish a fee system for commercial filming activities on federal land. [12] In addition to requiring a permit for commercial filming, the law also requires permits and fees for certain types of still photography.[13] This includes any still photography taken in a place not normally accessible to the public, where administrative costs are likely, and anytime “models or props” are used in conjunction with the photography.[14]

Colorado Congressman Joel Hefley introduced House Resolution 154, the bill that became Public Law 106-206.[15] During the final debate in the House, he noted that the purpose of the bill was to establish a uniform federal policy for the collection of fees for commercial film work on America’s public lands.[16] In proposing the bill, he was surprised that the National Park Service and the Fish and Wildlife Service had been forbidden from collecting fees for commercial uses since 1948. His bill was an attempt to remedy that problem.[17] The purpose of the permits and fees would be to cover all costs associated with giving film, video, and photography professionals access to the land.[18] While the debate didn’t specifically mention what costs the Senator was worried about, it did seem to focus around large scale production companies creating Hollywood type movies.[19]The Congressman noted that the bill represented an “unusual” degree of cooperation between his office, the Department of the Interior, and the Motion Picture Association of America.[20] This discussion, and a previous debate, primarily focused on use of public lands by the film “industry.”[21] Specifically mentioned were John Ford Westerns and Indiana Jones and the Raiders of the Lost Arc, as examples of commercial filming on public lands.[22] The bill also prohibited any activity that would cause damage, disrupt public use of the land, or cause health or safety concerns.[23]

Once the House forwarded the bill to the Senate, the only amendment that was added specifically applied the law to the Forest Service. The House bill only considered land management agencies within the Department of the Interior (National Park Service, Fish and Wildlife Service, Bureau of Land Management). Since the Forest Service is part of the Department of Agriculture, in its original form the bill would not apply to the USFS. The senate wanted to make sure the same laws applied to all land management agencies.[24] The House agreed, even though the USFS already had existing regulations that required a permit and a collection of a fee for commercial uses.[25] The House approved the Senate’s amendments and forwarded H.R. 154 to the president for signature.[26] Public Law 106-206 was signed into law on May 26, 2000.[27] Despite some reorganization during the codification of the laws post enactment, the current codified laws as they apply to all of the land management agencies are almost identical.[28]

Forest Service Regulations

As noted by Congressman Hefley, the Forest Service had been regulating special uses of National Forests, of which commercial filming and photography fell within, for years.[29] Public Law 106-206, with respect to the USFS, was codified as 16 U.S.C. § 460l-6d. It ended up being substantially similar to what the USFS had already based its existing commercial filming and photography regulations around. As it stands now, § 460l-6d provides the legal underpinnings to distinguish commercial filming and photography as it’s own category of special use.

In 2003, partly in response to the attention given to commercial filming and photography on public lands generated by the passage of Public Law 106-206, the Forest Service sought to clarify the regulations concerning commercial filming.[30] In the final rule, commercial filming was defined as:

“the use of motion picture, videotaping, sound recording, or any other moving image or audio recording equipment on National Forest System lands that involves the advertisement of a product or service, the creation of a product for sale, or the use of models, actors, sets, or props, but not including activities associated with broadcasting breaking news, as defined in FSH 2709.11, chapter 40.” [31]

This definition was adopted as a final rule in 2004.[32] In the final rule, no public comments were received.[33]

The definition of a “commercial use,” on the other hand, has been in place since 1995.[34] In that final rule, the public commented on the original vague nature of the proposed regulation. Comments expressed concern that the definition of a commercial use would include things like “a scout troop sharing food, an exchange of pocket-knives, or bartering.”[35] In reply to the comments, the Forest Service clarified the regulation to include only those activities that either (1) charge an entry or participation fee, or (2) where the primary purpose is the sale of a good or service.[36] The primary concern of the comments seemed to be unnecessary liability for activities on public lands in which profit was not the primary motivation, but might exist in an incidental capacity.[37] Nonetheless, in the final rule, the Forest service decided that uses that don’t have profit as their primary objective may still qualify as commercial uses.[38] The final definition of a commercial use was decided to be:

“any use or activity on National Forest System lands (a) where an entry or participation fee is charged, or (b) where the primary purpose is the sale of a good or service, and in either case, regardless of whether the use or activity is intended to produce a profit.”[39]

The two definitions discussed above have since been codified at 36 C.F.R. § 251.51.[40]

 

The Forest Service Handbook

In order to help Forest Service managers apply regulations, the Forest Service puts specific guidance into its Forest Service Handbook.[41] Since the regulations concerning commercial uses and commercial filming had already gone through the notice-and-comment period, and had been in place in their current form since 1995 and 2003 respectively, the Forest Service did not foresee any problem formalizing the guidance on these regulations. Interim directives were added to the Handbook in 2012.

On September 4, 2014 the Forest Service proposed to make final the interim directives in the Handbook concerning commercial filming and still photography.[42] The interim directives, which had been in place for 48 months, were contained in FSH 2709.11, chapter 40.[43] The Forest Service sought to finalize section 45.1c, which established a list of criteria to help forest managers evaluate applications for still photography and commercial filming use permits.[44] The criteria contained factors like: not causing unacceptable resource damage, not unreasonably disrupting the public’s use of the land, and not advertising any product or service.[45] These criteria were based on the guidance provided by 36 C.F.R. §§ 251.50-251.54, including the definitions of a “commercial use” and “commercial filming” as discussed above. They did not contain any new or strange criteria.

Despite the fact that the interim regulations had been in place for 4 years, this final proposed rulemaking generated an intense public backlash.[46] The public vehemently expressed freedom of speech concerns, as well as concerns that everyday visitors would start getting charged up to $1500 for taking pictures and then posting them online.[47] Most of these fears were unfounded, as a quick review of the law shows. However, the increased scrutiny on the regulations did bring to light a grey area within the regulations.

 

The Grey Area

Historically, the definition of “commercial” film or photography use was not ambiguous. Just as the congresswomen and men who argued for Public Law 106-206 focused on Hollywood type film productions, so did the Forest Service in their definition of a “commercial filming.” The regulations for commercial photography include the phrase “models and props” as part of the indicia of a commercial activity.[48] The definition seems to primarily consider activities that appear commercial or are primarily for advertising. The evolving use of the internet, however, creates ambiguity. What someone does with their pictures, and the manner in which some companies advertise goods, can make something commercial even though it might not appear to be commercial at first glance.

For example, consider the advertisement of a new waterproof rain jacket. The definition of a commercial use includes anything in which the “primary purpose is the sale of a good or service.” The definition of commercial filming includes anything involving the advertisement of a product. Historically, creating an advertisement for that jacket within a national forest would clearly fall within the regulations. The company would need to hire a model or models, a professional photographer, and then shoot something that was obviously going to be used to sell the jacket or advertise it. The shoot might require lighting, assistants, consulting with forest managers for best places to shoot and logistical concerns, etc. All of this shows indicia of a commercial activity, and would clearly need a permit. It makes sense that the Forest Service would want to regulate and control this sort of activity. There is a good chance this type of production could damage the land, or impede other uses. This becomes more and more obvious the larger the production becomes.

Now, consider an alternative example in light of recent trends in native advertising on social media networks.[49] A private citizen sponsored by a company to “try out” a new rain jacket. She might be given a jacket for free, and take pictures of herself wearing it in the wilderness on a camping trip. Then, after returning home all she would need to do is upload her pictures to social media, write a short comment about how amazing the jacket worked, and the manufacturer has just created a de facto advertisement reaching thousands of possible customers. The photographer might argue that the primary purpose of her trip wasn’t to take pictures of (i.e. advertise) the jacket, but the Forest Service could just as easily argue that the primary purpose of the trip was to get pictures of her in the jacket, or to fulfil some task from the manufacturer to be paid. Critics of the current regulations are concerned the Forest Service can apply the commercial use regulations to this sort of “dual” use. This is just one example of a private citizen being sponsored to take photos and post them on an online account.[50] Many other possible “commercial” uses easily come to mind when one considers all of the things that people can do with their pictures and videos within social-media outlets, and all of the ways that a manufacturer might “pay” someone to informally advertise a product.

 

So What Have the Agencies Been Doing?

Despite the fact that the exact definition of a commercial use is not crystal clear, it remains to be seen how land management agencies will use the commercial filming regulations. The FSH, the regulations it is based on, and the legislative history of PL 106-206, all paint a picture that the thrust of the law is to capture large scale advertising or filming projects that might have an impact on the land, or the average citizen’s enjoyment thereof. Even so, does that mean that managers will only apply the laws in this manner? Or, will they seek to enlarge the scope of activities covered under these regulations?

Generally speaking, the Forest Service is mostly concerned with effective stewardship of the land. It is not concerned with tracking down individual citizens who post nature shots, even if those persons derive some minor income from the pictures. Besides the obvious logistical and financial barriers to doing this, it would also be a public relations disaster for the Forest Service to track down and prosecute these people. Additionally, phrases like “would not cause unacceptable resource damage” and “would not unreasonably disrupt the public’s use and enjoyment” are some of the main factors managers rely on.[51] Likewise, the regulations point towards activities that have advertisement as their “primary” purpose.[52]

With that said, there are a limited number of cases in which a land management agency has pursued an individual user for violating the commercial filming or photography permitting system (either the Forest Service, or the other land management agencies under their respective, similar, commercial filming/photography regulations). Of these cases, all of them have involved some other behavior, in addition to the filming or photography without a permit, that prompted the prosecution.[53]

For example, in 2013 an independent filmmaker faced charges for filming without a permit in Canyonlands National Park.[54] The production itself involved no more people than normally climb in this area. However, the Park Service investigated the commercial filming permit violation after a picture was posted on the film’s website depicting vandalism of the park. The picture showed two rocks that had the name of the climb and the difficulty rating scratched into them and placed at the bottom of the route.[55] The picture was not posted by anyone associated with the making of the film, but rather by a fan. The picture did, however, prompt the investigation into the commercial filming permit violation.

In another case, the Forest Service prosecuted famous kayaker Steve Fisher for “use of national forest land without special use authorization” after he kayaked off Oregon’s 100-foot high Metlako Falls.[56] Fisher, who completed the stunt with the Jackass franchise personality Bam Margera, posted the video on Youtube. The Forest service saw the event as “commercial” in nature and decided to bring charges. In that case, while it’s not illegal to kayak off the falls, the Forest Service saw the event as both a safety issue, and a commercial event without a permit. The public nature of the athletes also may have played a part. The regulations require a permit for any filming or photography involving “props or models.” Bam Margera and Steve Fisher’s celebrity status may have put them in the category of “models.” In a statement by the Forest Service, the agency confirmed that while they recognize there is a gray area with posting to social media, in this case the agency went “back to the idea that we felt like it was a commercial activity, commercial in nature.”[57] This case best exemplifies the ambiguity in the commercial use definitions.

In another event, TV personality Brian Quaca was filming an episode of his TV show Boss Hog on National Forest Land.[58] It wasn’t his filming that drew investigation, however. Unknown to him, the government had been conducting a sting operation of the bear-hunting outfitter that Quaca had employed to help with the episode. Quaca ended up pleading guilty to commercial filming without a permit, but his investigation was only an offshoot from the primary investigation into the wildlife violations of his guiding company.[59]

These cases seem to point towards the fact that the land management agencies are not interested in pursuing everyday visitors. If anything, pictures of National Forests gaining wide circulation on the internet is good. It is free advertising, which might result in more visitors. And since land management agencies are historically and chronically underfunded,[60] it seems unlikely that they would systematically embark on a program that might drive away potential visitors and prevent pictures and videos of the lands from being posted on the internet. To further emphasize this point, on Sept 25, 2014 Tom Tidwell, the Chief of the Forest Service, released a statement clarifying the regulations. He said: “The fact is, the directive pertains to commercial photography and filming only – if you’re there to gather news or take recreational photographs, no permit would be required. We take your First Amendment rights very seriously.”[61]

Despite this statement, the case involving Steve Fisher and Bam Margera does seem to indicate that how famous you are, or how many followers you have on the internet, might make a difference. Especially if what you are filming or photographing is not something managers are happy about (like paddling your kayak off a 100-ft waterfall, or employing an outfitter engaged in other activities harmful to the land). The current definition of commercial filming does allow the agency discretion to pursue a user for posting to the internet. And the cases show that managers have used that discretion to take action they deemed necessary to protect the public lands. While the ambiguity in what qualifies as a commercial use does open the door to increased enforcement, logistical, practical, financial, and public relations barriers could limit the ability of agencies in the pursuit of most visitors.

For the time being, the current regulation seems to strike a balance between protecting our public lands, allowing certain uses to take place, and giving managers the necessary discretion to do their job. This doesn’t mean, however, that this balance will survive the test of time. As use of social media for advertisement increases, so might enforcement of these regulations. This may raise the need for additional clarification to the definitions.


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

[1] U.S. Forest Serv., The U.S. Forest Service: An Overview 1, http://www.fs.fed.us/documents/USFS_An_Overview_0106MJS.pdf.

[2] Id. at v.

[3] Land Uses; Special Uses Requiring Authorization, 69 Fed.Reg. 41946-01 (Jul. 13, 2004).

[4] 16 U.S.C. § 460l-6d(d) (2014).

[5] U.S. Forest Serv., http://www.fs.fed.us/im/directives/dughtml/fsh_1.html (last visited Mar. 10, 2015).

[6] U.S. Forest Serv., Special Uses – About the Program, http://www.fs.fed.us/specialuses/special_about.shtml (last visited Mar. 10, 2015).

[7] See U.S. Forest Serv., Forest Service Handbook 2709.11 ch. 40, 26-27 (Dec. 13, 2012).

[8] See, e.g., Amadou Diallo, 10 Instagram Photographers You Should Follow, Forbes.com (Oct. 28, 2013), http://www.forbes.com/sites/amadoudiallo/2013/1028/10-great-instagram-photographers-you-should-follow/.

[9] See, e.g., Devin Super Tramp, https://www.youtube.com/user/devinsupertramp/featured (last visited Nov. 11, 2015) (containing uploaded videos with over 29 million views).

[10] Michael Zhang, Top Instagram Users Making Thousands Per Photo by Promoting Products, Petapixel.com (Mar. 6, 2015), http://petapixel.com/2015/03/06/top-instagram-users-making-thousands-per-photo-by-promoting-products/.

[11] Commercial Filming Fee, Pub. L. No. 106-206, 114 Stat. 314 (2000).

[12] Id. at 314.

[13] Id.

[14] Id.

[15] 145 Cong. Rec. H231-01 (daily ed. Jan. 7, 1999) (H.R. 154 introduced by Rep. Hefley), 1999 WL 4663 (Westlaw).

[16] 146 Cong. Rec. H3479-02 (daily ed. May 22, 2000) (statements of Rep. Hefley), 2000 WL 659985 (Westlaw).

[17] Id.

[18] Id.

[19] See Id.

[20] Id.

[21] See 145 Cong. Rec. H1812-01 (daily ed. Apr. 12, 1999) (statements of Rep. Gibbons, Romero-Barcelo, and Hefley), 1999 WL 201641.

[22] Id.

[23] Id.

[24] Id.

[25] 146 Cong. Rec. H3479-02, supra note 16.

[26] 146 Cong. Rec. H3805-03 (daily ed. May 24, 2000) (bills presented to the president), 2000 WL 699861.

[27] 146 Cong. Rec. H7498-04 (daily ed. Sept. 12, 2000) (house bills approved by the president), 2000 WL 1287723.

[28] H.R. 154 has subsequently been codified as 16 U.S.C. § 460l-6d. The relevant sections as they pertain to the National Park system were repealed and re-codified by Public Law 113-287 under 54 U.S.C. § 100905. The language of § 100905 is almost identical to that of § 460l-6d. Compare 54 U.S.C. § 100905 with 16 U.S.C. § 460l-6d.

[29] See, e.g., 146 Cong. Rec. H3479-02, supra note 16; 36 C.F.R. § 251.51 (2013).

[30] Land Uses; Special Uses Requiring Authorization, 68 Fed. Reg. 2948-01 (Jan. 22, 2003).

[31] Id.

[32] Land Uses; Special Uses Requiring Authorization, 69 Fed. Reg. 41946-01, supra note 3.

[33] Id.

[34] See Land Uses and Prohibitions, 60 Fed. Reg. 45258-01 (Aug. 30, 1995).

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Id.

[40] 36 C.F.R. § 251.51 (2013).

[41] See, e.g.,U.S. Forest Serv., supra note 7.

[42] Proposed Directive for Commercial Filming in Wilderness; Special Uses Administration, 79 Fed. Reg. 52626-01 (proposed Sept. 4, 2014).

[43] Id.

[44] Id.

[45] Id.

[46] See, e.g., Casey Schreiner, The Forest Service Won’t Charge You $1500 for Photos, www.modernhiker.com (Sep. 25, 2014), http://www.modernhiker.com/2014/09/25/the-forest-service-wont-charge-you-1500-for-photos/.

[47] Id. ($1500 seems to be a random number this author chose to represent a commercial filming/photography fee. Actual commercial filming fees can range from less than $100 per day up to more than $700 per day, depending on how many people are on site. See, e.g., U.S. Forest Serv., Forest Service Handbook: Alaska Region (Region 10) Juneau Alaska 2709.11 ch. 30, 15 (Nov. 13, 2014); U.S. Forest Serv., Forest Service Handbook: Rocky Mountain Region (Region 2) Denver, CO 2709.11 ch. 30, 3-4 (Jan. 6, 2007).

[48] 36 C.F.R. § 251.51.

[49] Business Insider Intelligence, Spending On Native Ads is Soaring as Marketers and Digital Media Publishers Realize the Benefits, www.businessinsider.com (May 20, 2015) (discussing exponential increase in social-media based native advertising), http://www.businessinsider.com/spending-on-native-ads-will-soar-as-publishers-and-advertisers-take-notice-2014-11.

[50] This wasn’t traditionally a problem because historically, private citizens were not able to create, publish, and distribute advertisements themselves.

[51] U.S. Forest Serv., supra note 7.

[52] 36 C.F.R. § 251.51.

[53] See Grayson Schaffer, Why Your Instagram Nature Shot Is Breaking the Law, www.outsideonline.com (Feb. 2, 2015), http://www.outsideonline.com/1930546/why-your-instagram-nature-shot-breaking-law.

[54] Id.

[55] Id.

[56] Id.

[57] Id.

[58] Id.

[59] See Schaffer, supra note 53.

[60] See, e.g., The Wilderness Society, 2015 State of the National Conservation Lands: A Third Assessment 4 (Sept. 2015), http://wilderness.org/report-national-conservation-lands-chronically-underfunded.

[61] Press Release, U.S. Forest Service, US Forest Service Chief: I will ensure the First Amendment is upheld under agency commercial filming directives (Sept. 25, 2014), http://www.fs.fed.us/news/releases/us-forest-service-chief-i-will-ensure-first-amendment-upheld-under-agency-commercial.

 

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