Put away the pitchforks, folks. After reading some of the recent horribly misleading media coverage of a proposal by the US Forest Service, you might think that members of the media (down to – and yes, including! – us lowly bloggers) are about to be banned from all National Forest lands. You might even be forgiven for thinking wildlife, landscape, or casual photographers selling their prints online or at a local art show or gallery are about to be hit with an onerous fine. Just take a look at some of the articles that have popped up today, in order of increasing fearmongering:
There are plenty more where those came from, but fortunately, most of that is simply false.
We don’t like to really get political on this blog, but this round of mainstream media ineptitude starts to expose why they might legitimately need a permit to do some of the stuff they try to get away with on a regular basis.
So here’s the actual story. The Forest Service has long required a permit for some types of commercial photography and most commercial video production on National Forest lands, and, when you stop and read the rules, they’re actually fairly reasonable. The permitting requirement is clearly designed to prevent gross misuse of public land for profit – not to blast a bird watcher into bankruptcy for documenting her latest find.
The rules for what requires a permit are pretty clear, but every news article I’ve seen has failed to incorporate those into its story. So here it is, outlined clearly in 36 CFR §251.51:
- Still photography—use of still photographic equipment on National Forest System lands that takes place at a location where members of the public generally are not allowed or where additional administrative costs are likely, or uses models, sets, or props that are not a part of the site’s natural or cultural resources or administrative facilities.
- Commercial filming—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.
We’ve researched this before, since part of what we do involves photographing and filming on National Forest lands for what might be construed as “commercial purposes”. (Our original question was, does it count as “commercial” if you put it on a blog or web site that is ad supported?) But when you read those definitions, it’s clearly not, and none of that applies to the individual photographer, taking pictures of the wilderness, from a generally accessible area – even if they plan on directly selling those in the future. (Videos are an exception, even for an individual, if they are an ad or offered for sale directly. We don’t do that.)
And most importantly, this still does not apply to media covering a breaking news story – only to those making documentary-style videos for sale, and it is not an attempt at silencing anyone from legitimate news gathering.
What’s changing is not what kind of photography or filming requires a permit, but the guidelines by which the agency will even approve or deny a permit. The definitions above are not changing. Not all Forest Service land is designated wilderness, and not much is changing outside the wilderness areas. The real changes come only when someone actually applies for a permit for commercial filming in federally designated Wilderness areas. They’re trying to clarify under what conditions they will approve or deny the permit. And that’s all.
Now, it is true that the guidelines used for approving or rejecting your permit are going to get pretty strict. Your commercial filming (because – media or not – that’s what it is) won’t be able to cause resource damage, disrupt the public’s ability to use the area, be a risk to public health, or involve pornography. And if it’s inside a designated Wilderness area, it must be about the wilderness. It must be necessary that the filming take place on wilderness land (as opposed to other suitable locations that are not federally designated wilderness). And it must not require motorized or mechanical travel, which is already prohibited in the Wilderness.
That’s pretty strict, and I can see how first amendment concerns might be raised, but the assertion that there will be some sort of a “pay-to-play” system where $1500 grants you filming rights is particularly egregious. The funny thing is, if anything, these new strict requirements will ensure that even fewer people have the opportunity to pay such a fee than do now. Regardless, this is not some sort of a money making ploy by an under-funded federal agency, nor an attempt at squashing Sasquatch-in-the-wilderness photos from making the rounds on social media and stock photography sites.
There are legitimate concerns raised by this rather high level of restriction on filming in wilderness areas, but as a supporter of wilderness, I’m in favor of the spirit of this overall. I think the media does a disservice to its customers to mis-report the facts the way it’s being done here – and ultimately, to itself.
You still have time (until November 3rd, 2014) to submit your comments regarding this proposed change. I certainly will be. But if you’re thinking about writing to plead for permission to take pictures with your iPhone next time you go hiking, don’t bother, because that’s already allowed – and nothing about this proposal is going to change that.
Edit 9/26: here’s a link to the Forest Service’s Special Uses handbook, which is what this whole proposal is about amending. Here’s a link to a Q&A document about the proposed changes from way back in July 2013, where it is stated “The Proposed Directive makes no changes to the policy on still photography. No permit is required for most still photography, including still photography in wilderness areas.”. The US Forest Service has also issued its official response to this whole debacle.