Media Law Hotline Question of the Week

 


ROBERT A. BERTSCHE
Prince Lobel Tye LLP

A national media and First Amendment lawyer, offering counseling and litigation services, as well as contributing to the NENPA Media Law Hotline
www.princelobel.com


New England Newspaper Media Law Hotline 888-428-7490

A drone hobbyist submitted to our paper several photographs of town landmarks, taken from his drone. Can we publish them? Can we pay the hobbyist for them? Can we assign the hobbyist to take additional photos, whether of landmarks or of breaking news events such as fires and motor vehicle accidents?


Short answers: You can publish the photos, and you can compensate the hobbyist for the photos so long as you did not commission them. But if you engage the hobbyist as the equivalent of a freelance photographer on assignment, paid or not, you risk getting a nasty letter from the Federal Aviation Administration.

What Are Drones and How Are They Regulated?

Let’s start with some background. Drones, technically known as unmanned aerial vehicles (UAVs) or small unmanned aircraft systems (sUAS), offer tremendous potential for stunning photography and remote newsgathering, in a manner that is safer and more practical than helicopters or other manned aircraft currently used by the media. They are particularly beneficial to community newspapers, which cannot routinely afford to rent a helicopter for aerial photography. But the law governing their use is, well, up in the air.

The FAA in February 2015 proposed regulations for the commercial use of drones that fly no higher than 500 feet. Until those rules or some revised version of them take effect, the FAA is relying on a policy statement it issued in 2007. That statement says drones may not be used for a commercial purpose, which the FAA construes to include newsgathering, unless the operator has obtained a special exemption from the agency. So far, some government agencies have received exemptions, but very few private entities have been exempted—and, until recently, no media outlets.

What Happens If You Break the Rules?

Those who defy the rules have received threatening letters from the FAA, but usually nothing worse.

For example, in 2013, the FAA sent cease-and-desist letters to drone journalism programs at the University of Nebraska-Lincoln and the University of Missouri. On one occasion, though, the FAA fined a operator $10,000 for reckless flying of a 4.5-pound drone; he protested, and the fine was ultimately reduced to $1,100, but only after 15 major media companies filed an amicus brief arguing that the use of drones in newsgathering is protected under the First Amendment.

When Will Media Outlets Be Permitted to Use Drones for Newsgathering?

Enforceable rules are slow in coming. Under a federal law passed in 2012, the FAA has been charged with developing a “comprehensive plan” that would establish rules for the use of drones by public and private operators. The agency issued proposed rules in February, sensibly eliminating, for example, the current requirement that a commercial drone operator have a pilot’s license and medical certification.

The proposed rules would require that UAVs weigh less than 55 pounds, operate at a speed of less than 100 mph, and fly at a height of no more than 500 feet. “Micro” UAVs, those which weigh 4.4 pounds or less, would be less restricted and, unlike their larger counterparts, could be flown over people.

Further, the rules would restrict flights conducted outside the visual line of sight or during the nighttime—restrictions that have been criticized by a coalition of news media outlets that issued comments in April. That coalition has also recommended that all UAVs be permitted to fly over people, so long as they have at least 50 feet of vertical clearance. Most compellingly, the coalition asks that “micro” UAVs for newsgathering purposes be authorized now, rather than awaiting the final rules, which are not expected until late 2016 at the earliest. (In the meantime, a couple dozen media companies are testing newsgathering drones, with the FAA’s permission, from a test range at Virginia Tech University.)

Are the Feds the Only Ones Concerned With Drones?

State legislators have tried to get in the act, too. Rhode Island recently created a special commission to study the issue and recommend laws governing drone use in that state. Connecticut has done the same, issuing a 33-page report last December. New Hampshire has outlawed the use of drones to disrupt hunting or fishing. Maine regulates the use of drones by law enforcement agencies.

Meanwhile, the confused status of the current drone rules is illustrated by an incident that occurred in Hartford in early 2014, when a television news producer-cum-hobbyist flew a camera-equipped drone over the scene of a fatal car accident. His actions earned him scrutiny from the FAA, interrogation from police, and a one-week suspension by his employer. One question that arose was whether he was acting as a hobbyist or a television producer at the time. As a hobbyist, he was arguably within his rights to fly the drone—but if he was acting as a member of the media, his use would be deemed “commercial” and thus banned under the FAA’s 2007 policy statement.

What Can Your Newspaper Do?

That leads us back to your original question: Can your newspaper publish aerial photographs offered to you by a drone hobbyist who’s not on your staff?

The answer is yes, according to a May 5, 2015, legal memorandum by an FAA staff attorney. “The news media … may use pictures, video, or other information obtained from a UAS operated by a person not affiliated with that media outlet,” according to the memo. So long as the media outlet “does not have operational control of the UAS and is otherwise not involved in its operation,” the FAA won’t get involved. That’s true even if the media outlet pays the hobbyist for the right to use the photo or video.

So, publish those photos to your heart’s content. (Whether the hobbyist who sells the photos to you is in hot water is a trickier question, and depends upon whether the photos were taken with the intention of selling them for profit, or whether the sale was just an afterthought.)

However, the answer is different if the drone operator is deemed to be a part of your news operation. If you proactively assign the hobbyist to take particular photos for you, then arguably the hobbyist will become “affiliated with” your newspaper, rendering the drone activity “commercial” and therefore prohibited. In that case—and until new, more media-friendly rules are put in place—you should be prepared to receive at least a cease-and-desist letter from the FAA.

The Media Law Hotline is a service offered free of charge to NENPA members in good standing, and is staffed by the media and intellectual property lawyers at the Boston law firm of Prince Lobel Tye LLP. You can reach the NENPA Hotline (operated by media lawyers at Prince Lobel Tye), at 1-888-428-7490 or by email at media@princelobel.com.

 

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