New Measures Proposed by Department of Interior, New York City
Filmmakers and photojournalists said new rules proposed in 2007 by both the U.S. Department of the Interior and the New York City Mayor’s Office of Film, Theatre, and Broadcasting might hamper press freedom and stifle speech.
U.S. Department of Interior Proposes Fees for Commercial Photography
A rule proposed by the Interior Department Aug. 20, 2007 would require some commercial photographers and filmmakers to acquire permits and pay a license fee in order to shoot on federal land controlled by the department.
A federal law, 16 U.S.C. section 460l-6d (2006), adopted in 2000, gives the Departments of the Interior and Agriculture authority to charge commercial filming fees on United States-owned land.
Current Interior Department rules vary depending on which agency within the department controls the land. The National Park Service, the Bureau of Land Management, and the U.S. Fish and Wildlife Service all own land and are part of the Interior Department, but only the Bureau of Land Management currently charges a license fee to some commercial filmmakers and photographers.
The new rule, 43 C.F.R. Part 5, would standardize the process across all three agencies. The rule requires “commercial” filmmakers to obtain a permit. Photographers only need permits if the shooting takes place on land usually off-limits to the public, uses sets and props, or has the potential to damage Interior Department property. “Commercial” filming “means the digital or film recording of a visual image or sound recording by a person, business, or other entity for a market audience” including studio movies, documentaries, advertisements, and television, the rule says.
The rule explicitly exempts “news coverage” from the definition of commercial filming, but it does not define the term. It also gives the Interior Department agencies the authority to institute “time, place, and manner” restrictions on photojournalists working on federal land. Time, place, and manner restrictions – restrictions that target when and where a photojournalist may work – will generally withstand First Amendment scrutiny as long as they are applied consistently. Content-based restrictions – restrictions that target what a photojournalist may shoot or display based on the content of the image – generally will not.
The rule states that permits “will” be issued unless the filming is likely to harm natural resources, impair public enjoyment of the land, pose health risks, be incompatible with the mission of the agency, or violate federal law. The agencies may issue conditional permits, which require photographers and filmmakers to accept restrictions designed to minimize disruption and uphold the land’s purpose or risk seeing the permit revoked.
The rule also requires that permit seekers obtain independent liability insurance to cover potential injuries and damages that occur during filming.
The Interior Department will charge filmmakers seeking permits a “location fee” that will vary based on the cost of reviewing the application, the number of days spent on the land, the size of the crew, the amount of equipment, and the typical fees charged by other landowners, both public and private, for similar projects. The rule calls for the Interior Department to publish a fee schedule in the Federal Register.
According to background information published by the Interior Department along with the proposed rule, the changes will serve the public by preserving sensitive and unique habitats and forcing commercial filmmakers to pay for damage and monitoring expenses. But some federal legislators and journalism groups have criticized the proposal, saying it gives federal officials too much discretion to censor photographers and filmmakers.
At a Dec. 12, 2007 hearing before the House Natural Resources Committee, Barbara Cochran, President of the Radio-Television News Directors Association (RTNDA), said the rules could stifle coverage of federally owned lands by forcing news programs to pay for access.
“While RTNDA supports your well-intentioned efforts to appropriately manage private uses of our public resources, RTNDA is concerned that the rules as currently drafted may have the unintended consequence of limiting our members’ ability to report on issues of interest and importance to the American public,” she said at the hearing.
“[N]ewsgathering is not always characterized by bright lines, and could be said to involve ‘commercial filming.’ Certainly, the rule as written appears to contemplate circumstances where, for example, a crew is sent out to cover a wildfire on public land as ‘breaking news.’ But, a camera crew capturing background footage for an upcoming, in-depth series on federal land use policies might be cowed into abandoning their efforts if their presence is challenged by a Bureau of Land Management official who insists that they cannot film without a permit,” she said.
Rep. Nick J. Rahall (D-W.Va.), chairman of the committee, called the proposed rule another example of the Bush administration’s “hostility” to open government. “This administration’s record on resources management is dismal – maintenance in our national parks, listing of endangered species, fire preparedness, and responsible energy development – are just a few examples of serious policy failures by the Bush administration,” Rahall said. “Any hint that this new permit and fee structure could limit the free flow of public information regarding the very real consequences of these failures is simply unacceptable.”
According to a Dec. 14, 2007 story in the Seattle Post-Intelligencer, executive branch officials continued to stand behind the proposed rules following the hearing. “There is no intention in these proposed regulations for censorship by the agencies based on content,” said Mitchell Butler, deputy assistant secretary of the interior for fish, wildlife and parks. “In fact, we believe that telling the story of our resources benefits not only our public lands but the visiting public as well.”
The Interior Department also received more than 60 written comments on the proposal from journalism groups, private photographers, and individuals on both sides of the issue. The proposed rule, along with those comments, can be viewed at www.regulations.gov by searching for “DOI-2007-0035.”
The Interior Department had not taken further action on the rule at press time.
New York City Backs Off Plan to Restrict Filmmakers and Photographers
Press groups, filmmakers, and the New York Civil Liberties Union (NYCLU) reacted with heated criticism to new rules proposed in the summer of 2007 by the Mayor’s Office of Film, Theatre, and Broadcasting (MOFTB) in New York City.
The proposal could have required even casual photographers with handheld cameras and tripods filming anywhere on city property, including streets, sidewalks, and parks, to obtain permits and $1 million in liability insurance. In response to the criticism, the MOFTB issued a revised set of rules Oct. 29, 2007 that ease restrictions for amateurs, students, and smaller projects that do not obstruct traffic on the city’s streets and sidewalks.
The original proposal would have required any group of two or more people filming for more than 30 minutes, or using a tripod for more than 10 minutes, to obtain a permit. The rule’s definition of “filming” included still photography with handheld cameras. To obtain a permit the rules required proof of $1 million in liability insurance. Critics said the proposed rules would restrict the First Amendment rights of freelance photographers and photojournalists because they required a permit with an insurance requirement that would be prohibitively expensive for most independent producers.
The revised draft of the rules allows for unlimited use of handheld cameras and tripods without a permit as long as the filmmakers do not obstruct the city’s streets or sidewalks. The rule says a sidewalk is not obstructed if the greater of eight feet or half the sidewalk’s width remains open for pedestrians to pass.
For example, on a 12-foot wide sidewalk, a photographer could set up a tripod obstructing a four-foot portion without a permit, but a five-foot obstruction would require a permit. On sidewalks eight feet wide or narrower, any obstruction would require a permit under the new proposal.
Press photographers with credentials issued by the New York City Police Department are exempt from the permitting requirements. The rules also exempt photographers covering parades and protests.
The new proposal still requires that filmmakers or photographers using “vehicles or equipment” obtain permits. The proposed rules define “equipment” as cameras other than handheld cameras, props, sets, lights, and other production equipment.
The new rules state that the free permits shall be issued unless the proposed project poses a danger to the general public or seeks to shoot in an inappropriate location. Locations may be deemed inappropriate if the project cannot be accommodated, a different organization has already obtained a permit to shoot in the area at the same time, or shooting would interfere with city operations. The MOFTB may also deny permits to groups that have violated filming rules in the past.
According to an MOFTB explanation accompanying the rules, they are “designed to codify procedures that have existed in practice since the office was established in 1966. ...” The explanatory document says that the rules are not designed to deter photographers, journalists, or filmmakers, but to ensure sidewalks and streets remain free for public use.
The explanation also points out that student filmmakers seeking permits will meet the insurance requirements through their school’s coverage.
In a news release, Mickey H. Osterreicher, general counsel to the National Press Photographers Association, praised the changes. “It is nice to see common sense prevail in the face of constructive criticism,” he said. “The fact that the film commission has been able to distinguish amateur and professional photographers from large commercial productions goes a long way in helping all concerned. … I believe that retaining the press exception to the permit requirement, as well as articulating an exception for covering parades, rallies, and protests or demonstrations, is a sound decision. The real key will be how well a job the commission does in educating both the public and the police once these new rules are adopted,” he said.
According to a Dec. 26, 2007 story posted on the Web site Photo District News, the NYCLU and individual photographers voiced concern that selective enforcement of the “vague” new rules could lead to censorship problems. “Do you think cops will measure the sidewalk to mark how eight feet must be clear?” video artist Juliana Luecking asked at a Dec. 13, 2007 hearing concerning the new version of the rules. “Will they wear [measuring tapes] on their gun belt? Like the first proposal, these regulations give law-enforcement officials the power to prohibit my right to use a camera in public – and shield [police] from lawsuits.”
As the Silha Bulletin went to press, no further action had been taken on the proposed rules.
– Patrick File
Silha Fellow and Bulletin Editor