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This Picture Is Illegal

Proposed regulations to require Special Use Permits for commercial filming/photography

Entry 9:  September 26, 2014

If you drive a car, I'll tax the street
If you try to sit, I'll tax your seat
If you get too cold, I'll tax the heat
If you take a walk, I'll tax your feet

The Beatles, "Taxman"

Summer Lupines, Mt. Hood --  Chris Carvalho/
Summer Lupines, Mt. Hood

Yes, this picture is illegal.  It was taken while US Forest Service interim directive 2709.11-2013.1 was in effect and is (gasp!) For Sale.  I was unaware I needed a Special Use Permit just to carry a camera into a wilderness area, take the photo, and show it to you so you could appreciate the beauty of wilderness free of charge, and if inspired, buy a copy to hang on your wall.  The Forest Service is taking comments on this policy, so I wrote the letter below.  Please add your voice and support free access for photography.  Without a backlash from the public, we'll all suffer a great loss as our government erects another barrier to appreciating nature.  

Tom Tidwell
US Forest Service National Headquarters 
101B Sun Ave. NE 
Albuquerque, NM 87109 

Dear Mr. Tidwell:  

I am a photographer who takes still pictures and video for personal and professional purposes.  I sell my work as fine art, and also for publication.  Some of it is newsworthy and has appeared in documentaries, books, and in the press.  Most of my subject matter is nature, and often taken in wilderness areas.  I also blog about environmental issues.  I am highly concerned about the US Forest Service Proposed Directive for "Commercial Filming in Wilderness; Special Uses Administration" (79 FR 52626) for the following reasons:  

  1. The eventual use of an image (whether still or video) is often understood only after it has been taken and published.  The proposed regulation assumes the image usage is known before it is taken, and even before the photographer travels to the site (any permit must be submitted well in advance of the visit.)  Nearly every photographer has a story where an image taken for personal use became one that had commercial value, often unexpectedly.  
  2. Despite claims to the contrary, the proposed regulation does encompass still photography if it's eventually sold.  Referring to CFR Title 36, Chapter II, 251.51, it says commercial use includes "the creation of a product for sale" and "where the primary purpose is the creation of a good or service."  That means art photography which might be later sold is commercial, and any kind of photography where the photographer might receive compensation is commercial.   People like me who shoot photos for fine art are being targeted, despite the fact that we may shoot thousands of images and only sell one of them.  If I had to get a permit for each trip to a wilderness area, I'd be out of business in a heartbeat.  
  3. The existing regulation's wording gives the Forest Service far too much discretion to create violations out of thin air for photographic activities.  The wording should be simple, specific, and clear, and narrowly defined for only activities planned in advance and funded upfront by a third party, versus spontaneous, creative use for journalism, artistic expression, publication, or documentation, which are situations where compensation is uncertain, after the fact, and often unknown in advance.  We must not have regulations where photographers live in fear of not knowing if they will be punished because a law is so vague as to give a ranger the ability to discriminate against photographers, applying a law strictly to some, and not to others for reasons unrelated to what the photographer is doing at the time.  
  4. Photography is very dependent upon weather, site conditions, vegetation growth, bloom time, and bloom quality.  These conditions cannot be predicted in advance where a permit entails lengthy delays.  
  5. Permit fees and applications present an unnecessary barrier to free expression and the photographer's right to record nature.  This is a form of speech and must not be hindered by governmental intrusion.  
  6. The permit process creates a bureaucracy that imposes additional expense and burden on taxpayers, as well as additional costs for anyone in business who photographs for art, journalism, or publication.  Digital technology has reduced compensation to paper-thin margins.  Permit expenses will effectively prevent photographers from taking wilderness images and being fairly compensated for them.  
  7. Video and still photography have essentially merged with new technology.  Nearly all new cameras and cell phones can take either form of imaging.  Regulations must not distinguish between or limit the ability to record video or stills, causing a person to be in violation of the law by the simple decision of taking a video during a still photo session.  
  8. While the proposed regulation's title applies to commercial filming, it creates a slippery slope toward placing the same restrictions on still photography.  Many still photographers now shoot video as a means of promoting their work and supplementing their often meager income.  Video is often done in conjunction with still photography.  If enacted, video producers will seek to have the same restrictions applied to still photos out of fairness concerns.  
  9. The regulation is already inaccurate in its use of terminology.  I'm not being flippant to note that "filming" isn't a valid description of today's motion-picture equipment.  Film is seldom used, what happens today is almost always digital capture, either still or video.   The technology is changing so fast that any attempt to regulate it will likely be obsolete as soon as it's written.  
  10. Photographers and journalists play an important role in watchdogging the government.  The proposed regulation has the potential to limit that ability, depriving the public of important knowledge about wilderness management, impacts, and exploitation, whether by the government itself or by other parties seeking to benefit unfairly from a resource that belongs to the entire public.  Documentation is a valuable purpose for citizens to record history and debate controversial topics.  Documentation should not be restricted in any way as long as it is not impacting the wilderness resource.  
  11. The regulation was written before the widespread adoption of social media and blogging.  Many photographers use these tools for promotional reasons, education, lobbying, and for providing useful content that customers and the general public are interested in.  The proposed regulation could force photographers to obtain permits before doing any social media publication work.  This would amount to a gag order preventing such speech without paying a fee.  I'm reminded of the Beatles' song "Taxman," where the government says "If you try to sit, I'll tax your seat...If you take a walk, I'll tax your feet."   

I'd like to share some additional observations about why the proposed policy is a wrongheaded idea.  The government is unaware of the large amounts of goodwill they now receive from conscientious photographers and others who love wilderness.  When I photograph in wilderness, I'm conscious of the privilege I have to do this without restrictions.  I often carry out other people's trash, clean up campsites, and do other volunteer activity such as trail maintenance and construction with USFS personnel.  If everyone needs to pay a fee for photography, the sentiment could easily become, "The heck with it, I'm not going to clean up after others anymore, I'm paying the government to do that."  

The more government tries to make wilderness into a cash register, the more they will find visitors treating it poorly.   Photographers have done more to popularize the value of wilderness and create public support for it than the government ever could. It's time the Forest Service wakes up and gives photographers the credit we're due.  For those of us not involved in a lucrative for-profit advertising contract, photographers collectively donate many millions of dollars of time, fuel, equipment, editing, and publishing expenses without asking the government to compensate us.  

Government is also unaware of how photography really works.  The regulations are written to assume that we just walk up, snap a photo, and then sell it for thousands of dollars.  In reality, we may visit an area several times a year to monitor conditions, sometimes going back over many years to find the right combination of weather, light, and vegetation, taking hundreds or thousands of shots.  We get one that then sells to a magazine that pays us $50, or maybe $200 if we're lucky.  If I had to pay $1500 for a special use permit for each of those trips, would I be able to justify this financially?  Of course not.  The end result of this misconception is that no one will take pictures in the wilderness any more. It will be prohibitively expensive.  The government is taking a place that's accessible to the public, and clearly supported by the courts as an area where photography can't be regulated, and trying to stifle photography there.  

The reality of most of my work and that of nearly all fine-art photographers is that people view it online or in galleries free of charge, essentially an educational use.  A few people decide to buy prints.  A few publishers buy image rights for publication.  But the fraction that does is vanishingly small compared to those who view it for free.  The "fair use" copyright law allows people to copy my work when it appears online and publish it for educational or journalistic use, and I don't receive any payment for it.  If I can't charge for fair use of my images, the Forest Service certainly shouldn't be charging me to create them.  

For these reasons, I recommend that the proposed directive be shelved permanently.   Any directive to regulate photography and video in wilderness areas must not restrict the taking of images as long as the process is done in accordance with the existing guidelines of no-trace usage, non-motorized access, and keeping the party size below twelve people.  The sole limitation requiring a permit should be clear and simple:  impact to the wilderness resource, or unreasonable disruption of public access during a shoot.  Existing restrictions not allowing models, props, or sets are enough and need not be changed as those items are external to the wilderness and make a clear separation between a for-profit commercial use that is planned in advance and funded upfront by a third party, versus spontaneous, creative use for journalism, artistic expression, publication, or documentation, which are situations where compensation is uncertain, after the fact, and often unknown in advance.  I hope you agree, and will help the wilderness to remain a place that photographers can show to others who may not be able to visit it, and largely owes its success to the images we publicize showcasing its beauty. 

Thank you for the opportunity to comment.


Chris Carvalho LLC Nature and Landscape Photography
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