Okay, after my initial post on the USFS fees for commercial photography article I read I’ve composed myself and done some additional reading. Specifically I just went through the Federal Register’s posting from September 4th, 2014. I have to say, reading through the entire directive I’m left extremely disturbed. The language isn’t specific, and really could open up a can of worms for many folks photographing our nation’s public lands. Keep in mind, these are OUR public lands, as we live in the nation of “We The People.” Federal land is our land, paid for by us.
Several articles that I’ve read this afternoon downplay the potential impact for still photographers, and the writers have the opinion that these rules apply more toward “cinematic work.” You know, a Hollywood film crew wants to do some movie production at Yellowstone about the end of the world or something (I’ve seen that movie). But right off the bat at the start of the directive we find:
The Forest Service proposes to incorporate interim directive (ID) 2709.11-2013.1 into Forest Service Handbook (FSH) 2709.11, chapter 40 to make permanent guidance for the evaluation of proposals for still photography and commercial filming on National Forest System Lands. The proposed amendment would address the establishment of consistent national criteria to evaluate requests for special use permits on National Forest System (NFS) lands. Specifically, this policy provides the criteria used to evaluate request for special use permits related to still photography and commercial filming in congressionally designated wilderness areas. Public comment is invited and will be considered in the development of the final directive.
Do you see the words “still photography” in the bold text? Yes? Good, I do too and I know I’m not going crazy now.
Under section 1 the issue is repeated just to make sure the point is clear. Let’s have a read:
The proposed directive is necessary for the Forest Service to issue and administer special use authorizations that will allow the public to use and occupy National Forest System (NFS) lands for still photography and commercial filming in wilderness.
Okay, it’s pretty well established right up front that we are not just talking about commercial film work. We are in fact talking about still photography as well. And this isn’t new, it’s been quietly on the books for 4 years now.
The current language has been in place for 48 months. This proposal would make permanent guidelines for the acceptance and denial for still photography and commercial filming permits in congressionally designated wilderness areas.
As you continue reading through the directive you will find that this does in fact apply to still photography as well as filming. So what does this all mean?
Commercial use of images or video produced on public lands comes at a price
If you are using images or film that you have produced at our National Parks, maybe National Monuments, National Historic Sites, etc, you are subject to needing a special use permit in order to create and use your images commercially. What is commercial? Fortunately the government is on top of that, and they’re happy to share their vision of commercial with us (go to section 251.51 for the definitions of commercial use in case you disbelieve the quote below):
Commercial use or activity—any use or activity on National Forest System lands (a) where an entry or participation fee is charged, or (b) where the primary purpose is the sale of a good or service, and in either case, regardless of whether the use or activity is intended to produce a profit.
So, does your travel blog count? Well yes if your travel blog includes a few Google or Amazon Ads. You’re generating revenue, even if it’s small, on a site where you posted the image. That is a commercial use. How about posting on your Facebook page or Twitter. Both Facebook and Twitter are commercial entities that have advertising, offer you advertising opportunities, and allow pages like business information pages to be posted. Are you specifically involved in a commercial endeavor when posting on these services? Maybe not, but the language in the directive is loose enough to where I’d be concerned to ever post another image without fear of receiving a bill.
Fortunately this will have little impact at all
According to the directive, the impact will be fairly unsubstantial. I’m quoting a whole paragraph from the “Regulatory” section as I’m a little taken aback with their evaluation of the impact:
The proposed directive has been reviewed under USDA procedures and Executive Order 12866 on regulatory planning and review. It has been determined that this is not an economically significant action. This action will not have an annual effect of $100 million or more on the economy, nor will it adversely affect productivity, competition, jobs, the environment, public health and safety, or State or local governments. This proposed directive will not interfere with an action taken or planned by another agency, nor will it raise new legal or policy issues. Finally the proposed directive will not alter the budgetary impact of entitlement, grant, user fee, or loan programs or the rights and obligations of beneficiaries of those programs.
Less than $100 million in economic activity will be impacted. Is that the annual revenue of small photo studios across the U.S. who sell images of our National Lands? Currently I’m in Cortez Colorado, a short drive from Durango. There are 3 really great photo galleries in Durango, and all of them have images from the surrounding Forest Service lands in the area. What does this mean to future images taken on Federal Lands? I mean, these galleries are commercial, the photographers are trying to make a living aren’t they? Are they part of that $100 million in economic activity that is so insignificant (their livelihoods are pretty significant to them I expect). The Coloradoan weighs in on this point perfectly and you should read their article.
What can be done?
Well, the last time I posted something that I hoped would go viral it didn’t. But that doesn’t mean you don’t try again. So once more, to all the readers here, we can take some action. There is a public comment period and you can get in touch to voice your opinion on this issue. From the Register’s posting you have the following ways to get in touch and voice your opinion:
Submit comments electronically by following the instructions at the federal eRulemaking portal at http://www.regulation.gov or submit comments via fax to 703-605-5131 or 703-605-5106. Please identify faxed comments by including “Commercial Filming in Wilderness” on the cover sheet or first page. Comments may also be submitted via mail to Commercial Filming in Wilderness, USDA, Forest Service, Attn: Wilderness & Wild and Scenic Rivers (WWSR), 201 14th Street SW., Mailstop Code: 1124, Washington, DC 20250-1124. Email comments may be sent to: email@example.com. If comments are submitted electronically, duplicate comments should not be sent by mail. Hand-delivered comments will not be accepted and receipt of comments cannot be confirmed. Please restrict comments to issues pertinent to the proposed directive, explain the reasons for any recommended changes, and, where possible, reference the specific section and wording being addressed.
I would suggest you read the beginning of the posting and reference the directive specifically, otherwise your comments might go into space.
The Forest Service proposes to incorporate interim directive (ID) 2709.11-2013.1 into Forest Service Handbook (FSH) 2709.11, chapter 40
The 11th hour update
To be fair and keep this as up to date as possible we have an update! I set this article to the side for a few hours to continue watching the latest updates on this issue. And sure enough, Rob Davis from the Oregonian has put an update up on the issue. Apparently the Forest Service is now “clarifying” the issue. So there is momentum against this crazy idea. But here’s the thing folks. Until the directive is actually updated and explicit I would not let this issue go. So, keep reading, keep commenting, and help to make sure that this pretty zany idea gets buried for good. And to leave on a good note here’s a quote from Rob’s update:
Earlier Thursday, the Forest Service said it was extending a public comment period by a month, to Dec. 3, to allow more input on its photography rules. A host of bipartisan lawmakers said the proposal should instead be scrapped.