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This Picture Is Illegal
Proposed regulations to require Special Use Permits for commercial filming/photography
Entry 9: September 26, 2014
The Beatles, "Taxman"
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.
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:
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.