No, the Forest Service is Not Planning to Charge You $1500 to Photograph the Wilderness

posted in: Indoors | 25

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.

25 Responses

  1. Robert Mitchell

    Maybe not a worst case scenario as is being portrayed by some, but I’m still not liking this general trend by the Federal Government, and others, toward more and more restrictions, regarding image making in remote or public lands.

    • jordan

      But there are no new restrictions being proposed! The media has you thinking that, of course. From a Q&A document a year ago: “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.” That sums it up pretty well.

      • Robert Mitchell

        Perhaps no new restrictions, but now it will be LAW, and that is something that people should pay attention to. From an article which does make some of your points and seems fair enough:

        As I have stated, probably the most troubling aspect of this permit system is that the USFS has the ability to grant or deny any permit as it sees fit. Liz Close, USFS acting wilderness director, was quoted as saying “If you were engaged on reporting that was in support of wilderness characteristics, that would be permitted,”

        The question is, what if I am reporting on the Forest Services neglect to our public lands?

    • Bill Charlton

      Yeah, I’m not too crazy about this trend of over-regulation either. It’s getting more difficult to tell the difference between “bureaucratic regulations” and “enacted laws”. Government bureacracies are becoming more & more powerful and, as we should know, “power corrupts”.

      These govt. agencies need to show an undisputable pattern of abuses to justify restrictive regulations that carry a fine, and they need to show how the regulations are the minimal steps needed to resolve the problem!

      Since the 17th Amendment decimated the power of the various states to have a voice in the federal government, the federal govt. has continued to grant itself powers NOT granted it by WE THE PEOPLE through our U.S. Constitution!!!

      • Robert Mitchell

        Mr. Charlton, I am encouraged that others are noticing this trend also. Awareness is a good first step, even if I have no idea how to change it.

        • Robert Mitchell

          Mr. Charlton, I am encouraged that others are noticing this trend also. Awareness is a good first step, even if I have no idea how to change it. Jordan is correct that congress is the source and the solution (as they should be) but polarization currently renders them, and us, powerless.

  2. bryan

    I’m really surprised you are not genuinely concerned about the problems of enforcing such a law. You act like it’s a very simple thing, for a Forest Ranger to accurately know what person with a nice camera is or is not taking a picture for a commercial purposes. Judging by the zealousness of FS Rangers, I’m sure you will think differently about this law once you are stopped, questioned, distrusted, fined, dragged through the appeals process and finally vindicated for taking a picture of your wife/gf/family member with what seems like a commercial grade camera.
    It most certainly will happen.

    • jordan

      As I said, there are legitimate concerns, and I look forward to seeing those get addressed. I’ll be making my formal comments on this proposal known. But the purpose of this article was not to raise any more concerns – goodness knows plenty of others out there have done a bang-up job at that – but to maybe dial the panic level back just a bit. The (more thoughtful and researched) news articles appearing this morning (rather than the Sky Is Falling kind that popped up everywhere yesterday) have done exactly that as well.

      I, and *many other* photographers in the area and nationwide, have zero intention of stopping photography in wilderness areas, and if something like what you describe happens at least I’ll have an excellent story to tell, won’t I. And frankly, I’m still glad that my local news station won’t be able to drag 15 people and ten thousand pounds of equipment into Shining Rock for the purposes of making some sensational “documentary” to sell commercials with, without a permit.

      If it happens to me, that’d just make one over-zealous ranger embarrassed and maybe set a precedent for others to not get harassed for what is *clearly* allowed based on the actual definitions in the law.

  3. Gary Malcolm

    Why on gods green earth should the forest service be allowed to even ask why you are taking an image? What the hell do they care if I’m making a calendar? Why shouldnt i sell my pictures of the Grand Canyon? Are you saying the forest service has copyright on images of our national treasures. Shame on you.

    • jordan

      Gary – if you’re making a calendar, or taking and selling pictures of the Grand Canyon (which isn’t Forest Service property, by the way) then it doesn’t require a permit. Never has. They’d call you a “professional photographer”, and you are not doing “commercial filming”. And I agree with you! If you’re out there with nothing more than a camera and a tripod, the Forest Service should *not* even be allowed to ask why you’re taking an image. Fortunately, the law agrees with you too! It says that they “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.”. And this proposal does not change that. The Forest service doesn’t even have the power to change that – it’d be up to Congress!

      Congress passed a law way back in 1996 (16 U.S.C. §460l–6d. “Commercial filming”) which *requires* the Forest Service to collect a fee for certain types of commercial filming and photography on federal lands. They don’t have a choice in the matter! Maybe that original law should be repealed – if you think so, contact your representative, perhaps. But I do agree that there should be a permitting process for certain types of photography and filming on federal land, especially wilderness. Hollywood shouldn’t be allowed to just go in and commandeer an entire wilderness area for their next blockbuster movie, leaving it ruined when they’re done – it’s against the spirit of what a wilderness is! Do you not agree with that, at least?

      And if some type of regulation/permit system for filming in the wilderness is required, shouldn’t the rules be clear? Shouldn’t there be some dividing line between what needs a permit, and what doesn’t? This is all about drawing that line.

      But as long as that law regarding commercial filming is on the books, the Forest Service has to adopt policies to enforce it. This whole thing is about them clarifying the way they plan on enforcing that law, so that “local over-zealous rangers” aren’t making spastic decisions – they’re all following the same rules.

      No need to get personal.

      • Army-of-One

        Hollywood coming in and trashing the place is the extreme example. Yes of course that should not be allowed.

        Heres the more sticky part though. I need an expensive film permit if I want to flick my DSLR into Movie mode, capture some footage, and the sell it, or promote a sponsor on YouTube. That is a problem. Video online is only getting bigger.
        So I go on a run in a wilderness area, or any Dept of Interior land (Nat’l Parks, Forest Service, BLM), and I set up my iPhone on the side of the trail, hit record, and get a useable shot of me jogging by. IF I then sell that to a shoe company, or put it online with logos showing, I am breaking the rules if I didnt apply for a permit 180 days prior (days vary).

        The laws need to be changed to not discriminate against the army-of-one film crew.

        The govt’s mission is to protect the resource for future generations, the publics mission is to enjoy our public lands. Permits should be priced according to impact on the resource and others enjoyment alone. No matter if you are shooting photos or recording video.

        • jordan

          This, I agree with. I don’t fully understand why “moving pictures” are distinguished so strictly from still photos in this law. To me, it should be about the equipment and potential for impact than the final product.

          Unfortunately, the original 1996 law is responsible for this distinction, so the Forest Service has its hands tied in that regard (just like every federal agency that manages land).

  4. Robert Mitchell

    I actually find it refreshing that folks are paying attention to the fact that our freedoms are being eroded daily by do-good governments in the name of protecting us from ourselves With that rant out of the way…

    Where is all this coming from? Has there been an epidemic of hollywood commercial makers descending on our national forests and ruining them? And even if that were true, wouldn’t a law or regulation that said, if you are disturbing, don’t, and if you destroy, you pay. Otherwise leave me the hell alone, and whether or not I’m taking commercial pictures is none of your damn business.

    Oversimplified, maybe, but maybe things need to be a little simpler.

  5. Patrick Race

    Most modern cameras can flip a switch to record video and motion pictures are just an illusion created by a series of still images. I’ll be asking them why there are two sets of rules, I think permitting should be measured by impact rather than media… what’s the fee for a painting?

    • jordan

      Agree, but unfortunately, this fundamental of a change would require an act of Congress. Literally.

  6. Ralphie

    From the post: “…(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…”

    Missing the point entirely. It is if they SAY it is… and it does if the SAY it does… or simply decide to do so in the future.

    And they just love folks who say “Oh…, there’s nothing wrong here…”. It helps them make more and more of you… and you don’t even know you’re being had…til its too late to do anything about it.

    • jordan

      It may be disallowed if they SAY it is at the time of encounter with a ranger/officer, but it’s easily defensible in court. And it’d be a dispute I (and many other photographers) would be more than willing to have to set the record straight.

      But it won’t have to come to that. The Forest Service director has come out and ensured everyone, including those who work in his agency, that it doesn’t count in an official statement.

      And this proposal was ALL ABOUT making sure Forest Service employees were on the same page.

  7. Mark

    There should be no difference between a photographer taking a photo and selling it and a videographer selling a clip of say a waterfall. A distinction should be made between a single individual and a crew of people including actors, props etc.

    • jordan

      Agreed. This will be the content of the comments I submit to the Forest Service. Unfortunately, they will be able to do nothing about it; Congress will have to change this law. I might copy my representatives on my comments.

  8. Eric Bowles

    The Wave and South Coyote Buttes probably fall into the category of wilderness areas that do not normally have public access. So still photography would be regulated in those areas and a permit required for commercial use – even by a single photographer. The challenge today is that most commercial photography in wilderness areas is done on speculation – with no revenue unless a great image is captured and later sold. So a permitting process has potential to eliminate almost all photos in some of these areas.

    Take a look at Dan Cox book on the Ansel Adams Wilderness Area for another example of an area where still photography would be impacted. You can’t do that project without permits under the proposed regulation.

    NANPA, ASMP, and a dozen other photography organizations are in dialogue with Chief Tidwell and changes are being made. The situation is changing on a daily basis and an update will be provided by NANPA shortly. This is an area that requires attention as the proposed regulations are quite broad and subject to interpretation.

    • jordan

      The areas you mention are somewhat unique in that they have a permitting process for just *being* there. I do look forward to clarifications and updates in the language from the Forest Service; however, at the core, I don’t think much is really going to change without congress re-visiting the original law.

  9. Mike Piazza

    First off some of you are reading more in to this than there is. I used to work for the NYC mayors office of Motion Picture and Television productions. We didn’t charge the person on the street to take pictures and or videos. However if it was for a production for commercials ,TV or Movies you had to have not only a permit to shoot but also an insurance rider to cover any damages that may occur. The permits covered special parking permits for equipment trucks and parking for people working on the production. It also includes blocking off and closing streets. The production companies will also get fined if they do not leave the area as it was hey they first got there unless there were improvements made that are up to code and want to leave it there such as street light poles or repairs made to the streets or sidewalks.

    If you got anything from what I said this is about the same thing the US Forest service is talking about. The Forest Service does not want a production company going in to a park with equipment trucks, buses and “Star Trailers” without them knowing. $1500 for that is a drop in the buckets for most if not all productions.

    It does not mean you as a private citizen will have to leave your cameras or video cams unless you have a permit. Almost everyone has a cell phone that has both a still and video camera so cool your jets.

  10. Mark Williams

    Mike, it is the one man operation that has no impact on the resource or other visitors that will come out on the short end. As a federal park ranger for 31 years with USACE, now retired, my experience is the bureaucracy writes rules, regulations and policies in terms of black and white with no grey areas. A guy who shoots video of nature and maybe sells some clips as stock video will most likely come under the permit system. Now how can he justify spending $1500 or even a $100 for a permit to shoot video that he may sell for $50 or not at all. So essentially the government will force the small guy who probably does much to promote the beauty of the resource to stop or go elsewhere while the big operations who have large budgets will be allowed to proceed.

    Back in the day I used to issued what was called special event permits to cover commercial shoots on federal land. I worked with HBO, some large national advertising firms and smaller local business. The permit was issued on-site and usually cost $25 and higher if any costs were incurred by the government. We ignored small 1 or two person operations and allowed to proceed without a permit as long as park regulations were complied with (don’t damage or destroy anything, park in the right place, don’t create a disturbance etc.). Then guess what happened? The agency decided to issued film permits from a newly created office at the headquarters level instead of by the local park personnel. The outcome was fees went up significantly, permit processing times increased to weeks instead of days, everything potentially commercial and non-profit required a permit and the small operations were forced to go elsewhere. Additionally, the permit issuers had no on-site knowledge that could be helpful to the film crews. Here is a link to their webpage that explains application and fee structure

    That is how our government decided to handle filming on public lands which IMO is outrageous and that is what concerns me about the direction that the USFS is headed.

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