Drone Filmmaking – It May Be The Next Big Thing, But Is It Legal?

Automated drone filmmaking may represent a huge, new creative opportunity for filmmakers. Filmmakers interested in pursuing this method of filming should research the legal requirements before jumping in with both feet.

From Amazon’s recently-announced plans to deliver everything from paperbacks to pizza via drones, to a NY Times headline about a wedding photographer using a drone to capture an event, the technology is raising more questions than answers. Like most other advances in technology, adoption seems to out-pace the law and the use of drones in filmmaking is no different. As a technophile and entertainment lawyer, I am starting to get questions from my filmmaking clients asking about the legalities of filming using drones. After doing some research, one thing is certain: there is no clear answer.

To get a better handle on the situation, I decided to get an expert opinion. I recently sat down with friend and colleague Alan Farkas, a partner at SmithAmundsen in Chicago who heads the firm’s aerospace law practice group and asked him to enlighten me. What follows is a interview-style version of our conversation, focused on providing clear answers to many of the questions that filmmakers are asking.

A group of Hollywood movie studios recently applied to get a waiver for drone filmmaking. Who has the authority to regulate this?

The FAA claims authority to regulate anything in the National Airspace. Until drones came along, the National Airspace was understood to start 500 feet above the ground, in addition to the space around airports. Now, FAA is claiming jurisdiction over airspace well below 500 feet too, and that’s highly controversial.

Is it just the FAA or are there state or local agencies involved?

State and local governments have some role here too. State and local governments certainly can adopt privacy and security laws to safeguard personal rights, but they can’t go so far as to intrude on FAA’s territory. Clearly, these boundaries are very hazy and need to be sorted out.

What is the current state of the law? Is the FAA looking at this issue?

The FAA is in the midst of formal rulemaking procedures. They have developed a committee of professionals to study the regulatory issues, and the FAA has set-up several test sites across the country to address integration of drones into our national airspace.

Why do filmmakers need to care?

The FAA has asserted jurisdiction over the rules for operating drones commercially and shooting a film using a drone would be considered a commercial activity. More importantly, as far as the FAA is concerned, any commercial use of drones is currently prohibited. Many in the commercial aviation industry are watching an important case awaiting a ruling where the FAA is seeking a $10,000 fine against a drone operator. In addition, several others have received cease and desist letters from the FAA.

How will the FAA’s actions affect filmmakers?

It’s not hard to imagine the FAA shutting down production or halting distribution on a film that includes illegal footage, and then there’s the potential horror that could arise if an illegal drone causes an injury or interferes with a traditional aircraft. In an unusual example of foresight, some Hollywood production companies are trying to get ahead of this issue by applying for formal exemptions from the current FAA rules. The FAA is seeking comments on these proposals.

We hear stories about lots of small drones flying around town, are these all illegal?

Unfortunately, anyone who is shooting video for events, or to showcase real estate, or similar uses is doing so illegally because these are commercial uses. Oddly, someone flying a small drone in the same exact pattern solely for fun, is allowed to do so, as long as they aren’t hurting anyone or threatening regular aircraft. A lot of these folks will get away with their illegal uses. However, if you have a legitimate business, you may be risking a lot. Also, anyone who is caught violating the FAA prohibition is going to have a hard time getting a permit when they do become available.

Where can a filmmaker get more information?

Because this area is developing so quickly, it’s hard to find reliable information. The FAA has some basic information on its website (www.FAA.gov). Anyone intending to start using drone s for filmmaking is strongly advised to consult competent attorney. Farkas is glad to answer any preliminary questions without running the meter.

The take-away for filmmakers is clear: while drones will likely play an increasing role in innovative filmmaking, there are still legal risks that need to be addressed. Like all creative endeavors, it is important to seek legal advice early in the project to ensure that risks are addressed and, if possible, permits or waivers obtained. The consequences could range from minor, such as a monetary fine, to devastating, such as having one’s production shut down or distribution blocked.

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