Using Drones to Capture Content in the US for Commercial Use
Legal and other considerations
By Amanda Perrot, Adobe
Advances in technology have allowed photographers and videographers to choose between more traditional equipment and increasingly nimble technology that can fit in a pocket. Other technology advances, such as the development of drones — also known as unmanned aerial vehicles (UAV) or unmanned aircraft systems (UAS) — present new opportunities to capture images and videos that might not otherwise be possible due to the challenges of accessing a remote location or shooting from a plane or helicopter. However, in order to take advantage of these new aerial perspectives for commercial purposes, photographers and videographers must comply with federal and state requirements related to drone use. Licensing photos and images captured using drones also involves considerations that stock agencies may want to address in contributor agreements and guidelines.
Stock Industry Considerations for Contributors
Typically, in-license agreements include representations and warranties that the content will not infringe the intellectual property rights of others and the contributor complied with all applicable law. Submitting content in violation of federal or state law or the Policy Memorandum causes the contributor to be in breach of its representations and warranties. Additionally, it exposes stock agencies and their customers to legal liability, which may result in a cease and desist order and/or a financial settlement.
The same intellectual property laws apply to photography and videos offered for licensing by stock contributors whether or not the content was obtained using a drone. Therefore, operators who want to submit their drone-captured content for stock need to ensure that, where applicable, they obtain signed and valid model and property releases. If people are identifiable, operators will need to obtain a model release. While it is generally acceptable to use a drone on your own property, a property release most likely would be required if a drone obtained commercial-use content by flying over private property or certain public property. Operators should also ensure that their use of a drone to capture images or video does not violate individuals’ rights of privacy or publicity.
Stock Industry Considerations for Stock Agencies
It can be tricky, if not impossible, for stock agencies to tell whether a contributor’s content was captured using a drone. Similar content could have been taken using a helicopter or by climbing to a higher altitude. For example, see Thomas Smith’s article “How to Take Drone Photos Without a Drone”.
Even if the stock agency can determine that a drone was used, it is currently not common practice to confirm whether the contributor has the appropriate certification. To protect themselves and their end users, stock agencies will want to ensure that the in-license agreement includes robust representations and warranties from the contributors that they have all necessary rights and complied with all applicable laws. Additionally, stock agencies should consider updating their contributor guidelines to help raise awareness of the unique considerations involved in capturing content through use of drones.
Federal Regulations
The Federal Aviation Administration (“FAA”) establishes regulations that apply to all drone use — see https://www.faa.gov/uas/ and specifically Small UAS Rule (Part 107) (“Part 107 Rules”), as amended in 2020 (the “Amendment”). Using drones to create stock content would be classified as a commercial use under the Part 107 Rules. Unsurprisingly, additional, and more stringent, requirements apply to commercial use of drones.
Know the Part 107 Rules.
Drone operators (“operators”) must learn the Part 107 Rules. These rules include operational limitations, such as safety requirements, as well as certification and registration requirements. Visibility to other aerial vehicles is a particular concern, and Part 107 Rules specifically call out restrictions on flying drones near airports or manned aircraft.
The Amendment updated the Rules to allow operators to fly drones (A) over people and moving vehicles in certain situations, and (B) at night under certain conditions, in both cases without obtaining a waiver from the FAA as was previously required.
Whether, when and how operators may fly drones over people and moving vehicles depends upon which of four new categories of drones the specific drone falls into. The four categories primarily focus on drone weight and the potential severity of bodily injury that the drone could cause. The category of drone also determines whether notice must be provided that they are entering a zone where drones may be flown over them.
To operate a drone at night, operators must first (A) complete either the updated test (see more below) or the updated recurrent online training; and (B) ensure that the drone is equipped with working anti-collision lights that increase visibility and reduce the chance of collision.
Pass the Knowledge Test (updated); Certification.
In addition to learning the Part 107 Rules, operators must pass an initial aeronautical knowledge test to obtain a Remote Pilot Certificate (“Certificate”) unless the operator already possesses a Certificate. Knowledge test topics include 12 categories like aviation weather sources and effects of weather on drone performance, airspace classification and operating requirements, radio communication procedures, and maintenance and preflight inspection procedures.
The Certificate is only valid for 24 months. Prior to the Amendment, operators were required to pass the recurrent test within the previous 24 calendar months. However, the FAA has changed the requirement from a recurrent test to taking updated recurrent training that includes how to operate a drone at night.
Register the Drone; Comply with Remote ID Requirements
To comply with FAA registration requirements, operators can visit dronezone.faa.gov and select “I fly under Part 107 or as a Public Aircraft” to create an account and register a drone intended for use in capturing commercial-use content. Currently, drone registration is valid for three years. Failure to register could result in civil and criminal penalties so it is critical that operators register their drones.
In addition to certification and registration there is a new requirement called Remote Identification (“Remote ID”). Generally, Remote ID is the ability of a drone in flight to provide identification and location information that can be received by other parties. The goals of Remote ID are to help prevent drones from flying in an unsafe manner or over a prohibited location, and to address public safety, privacy, and security concerns.
Operators can comply with the Remote ID requirement in any one of three ways: (a) operate a Standard Remote ID Drone, which is a drone with built-in remote ID broadcast capability; (b) operate a drone with a remote ID broadcast module (a module that is added to a drone) and the operator must be able to see their drone at all times during the flight; or © operate without remote ID equipment at specific FAA-recognized identification areas.
Since Remote ID is a new requirement, the FAA has published one update March 10, 2021 since the original release of the requirements January 15, 2021. Therefore, the effective date for this requirement has been pushed back to April 21, 2021.
Operating Drones
During flight, operators must always have their Certificate and Remote ID information readily available and present them to authorities upon request. Any federal, state, or local law enforcement officer may test or inspect the drone, including having the operator demonstrate how the drone is flown. Therefore, it is important for operators to know the Part 107 Rules and operate the drone in compliance with the Part 107 Rules.
Other Laws and Regulations
Not only do operators need to comply with Part 107 Rules, every state has at least one law — either in effect or pending — regarding privacy, aerial trespassing, photography, and weapons. The laws vary in stringency. One of the most restrictive laws is Texas Government Code Section 423.004 (Use of Unmanned Aircraft Statute) (“Section 423”). Currently, the National Press Photographers Association, the Texas Press Association and a reporter are bringing a First Amendment challenge to Section 423, claiming that the law prohibits protected activities such as news gathering and singles out journalists. The lawsuit does not focus on the impact of the Section 423 on commercial use of drones, so the impact is predominantly on content taken for editorial purposes. The court recently ruled against the state’s request to dismiss the lawsuit.
The National Parks Service (“NPS”) Policy Memorandum 14–05 (“Policy Memorandum”) generally prohibits the operating of drones on the lands and waters administered by the NPS. This includes very well-known landmarks like Mount Rushmore, Yellowstone, the Grand Canyon, and the National Mall in Washington DC. The rationale is to protect park visitors from crashes, avoid harassing wildlife, protect property (one drone tried to land on Mount Rushmore) and limit noise and nuisance. Violation of the ban is a misdemeanor with a maximum penalty of six months in jail and a $5,000 fine. The Policy Memorandum does not modify the FAA rules. The Policy Memorandum still applies even with the very recent Price v. Barr decision that determined that permit and fee requirements applying to commercial filming is unconstitutional.
Amanda Perrot is Director, Associate General Counsel at Adobe Inc. At Adobe, she leads the team focusing on content in-licensing, including Adobe Stock. Adobe is also a sustaining member of the Digital Media Licensing Association.
The information presented is for general guidance and is not intended to address any specific matters. The application and impact of laws can vary widely based on the specific facts involved and where acts happen. As such, this article should not be used as a substitute for consultation with your legal counsel. Laws and regulations are subject to change so please check with the appropriate governing body before operating a drone for commercial purposes.
