Unmanned aerial vehicle-based photography and videography are on fire right now. Better known as drones, small remote-controlled quadcopters fitted with GoPros or similarly sized cameras are being used by hobbyists to capture amazing footage. The DJI Phantom has become the de facto standard, thanks to its combination of simplicity, compact size, low price and robust design. Someone new to drones can be up and flying within minutes of unwrapping a Phantom Vision 2 or Vision 2+. DJI offers a couple of different ways to attach and control the camera on the Phantom, all of which are smooth and stable. And DJI isn’t the only game in town. For an extensive review of the most popular drones, we recommend The Wirecutter’s article "The Best Drones" by Eric Hansen (thewirecutter.com/reviews/best-drones).
The dramatic rise in drone popularity has spread beyond hobbyists. Film, television and commercial cinematographers have been using large, powerful octo-copters with everything from DSLRs to RED EPIC cameras for some time (with the appropriate permits), and now a variety of other professionals are employing them for everything from photojournalism to wedding work to capturing landscapes and cityscapes from a new perspective.
What hasn’t been so clear is the legality of drone use for commercial purposes. For the moment, the laws regarding professional use of a drone for photography and videography lack clarity. Even jurisdiction hasn’t been well established. While the FAA usually trumps other authorities when it comes to airspace, many state and local governments and even the National Park Service now have overlapping, and in some cases, contradictory, guidelines and laws.
Until the Federal Government sorts things out with a comprehensive set of guidelines, this kind of Wild West patchwork is likely to be the norm. In May 2014, NPR reported on the FAA’s crackdown on the Drone Journalism Lab at the University of Nebraska. The article states, "What was once experimental is now becoming more common: Journalists and photographers are increasingly putting small commercial drones in the air to shoot photo and video. But when they do, they’re on shaky legal ground. Federal regulators currently prohibit drone use for commercial purposes—including reporting—as they work to write longer term guidelines on who can fly small drones, and where."
After several highly publicized incidents in U.S. national parks, the NPS issued a memorandum in June 2014 specifically prohibiting "launching, landing, or operating unmanned aircraft on lands and waters administered by the National Park Service." The NPS calls this a temporary measure pending a full review and the establishment of a "Servicewide regulation." It’s unclear when that will be.
So can you legally use a drone in your work as a professional photographer in the United States? Maybe. The FAA’s Unmanned Aircraft Systems (UAS) Fact Sheet dated January 6, 2014 specifies that a model aircraft is limited to within 400 feet of the ground and away from airports and air traffic. That seems clear enough, but the same paragraph also stipulates that these guidelines specifically exclude individuals or companies flying model aircraft for business purposes. The Fact Sheet refers to an advisory circular (Advisory Circular AC 91-57) that was written in 1981, which makes no mention of commercial or business use.
Furthermore, the same FAA Fact Sheet seems to empower state and local governments to further restrict drone usage. For example, a state law or regulation that prohibits or limits the operation of an aircraft, sets standards for airworthiness or establishes pilot requirements generally would be preempted. But state and local governments do retain authority to limit the aeronautical activities of their own departments and institutions. Under most circumstances, it would be within state or local government power to restrict the use of certain aircraft, including UAS, by the state or local police or by a state department or university.
As of September 2014, there are 20 states with laws on the books regarding the use of drones. The FAA isn’t expected to have their complete guidelines in place before September 2015. Until then, a certain amount of ambiguity and confusion will reign.