New Rule Threatens Photographers

By Courtney Hungate

TUCSON, AZ - From Mt. Lemmon in the Coronado National Forest to the Saguaro National Monument, Tucson has many sites that attract amateur and professional photographers, alike. But rule changes proposed by the Department of Interior regarding fees and permits is threatening the public’s freedom to capture images they witness as photographers.

The Department of the Interior is trying to carry out a public law passed in 2000 by establishing fees for commercial use of national parks, forests and monuments, but their proposed rule is so vague it could be applied arbitrarily to photojournalists, freelance photographers, or just about anyone, said Joe Davis, a freelance journalist and editor for the Society of Environmental Journalists.

“It’s just another way for the government to take what’s already ours and try to sell it back to us,” he said.

The SEJ is one of 19 groups who responded to the rule with almost 10 pages of comments, concerns, and recommendations for new language to ensure the rights of journalists and the general public to use public lands.

According to the society’s comments, there are three major issues with the current version of the rule: restrictions on still photography, the definition of news, and the inclusion of audio recording.

Photography restrictions are prohibited in Public Law 106-206, which states no fees or permits shall be required for photography that takes place where members of the public are generally allowed, Davis said. Under the new rule, however, photography is subject to fees and permit requirements if it is for commercial use.

Commercial use of the land is considered to be any video/sound recording or photography intended to generate income or to advertise a product. But with today’s technology, nearly anyone is able to take pictures or record video and sell it on the Internet, regardless of the manner in which they were created.

A photographer could be asked to take photos for a wedding in a national park because they know how to capture the beauty of landscape, but if that person profits from the work, he is considered commercial.

It’s just not fair, said Jessica Mulford, a freelance photographer whose favorite place to take pictures is on Mt. Lemmon. She has sold a few photos online, but it surely doesn’t pay the bills, she said.

On average, five permits are issued on Coronado National Forest per year, said Rachel Hohl, special uses administrator for the southwestern division of the U.S. Foresst service.

According to the rule, “still photography activities by visitors generally do not require a permit” unless there are models, use of props and sets, or access to areas not normally open to the public. But it’s not clearly defined what makes a model.

An example of commercial still photography would be staging people drinking Starbucks in hopes of using it for an advertisement. However, pictures of some people camping to put into news or feature articles would not be considered commercial, said Judy Yandoh, a U.S. Forest Service ranger.

Some local folks aren’t very concerned about the rule because they think it seems fair to make money off those who profit from their work.

“I guess if the picture takers get to make some bucks, so can the parks,” said Ralph Fasanella, a retired computer specialist who doesn’t spend as much time enjoying nature as he’d like to.

The second major concern, the definition of “news,” is bothersome to journalists because it seems to protect newsgathering, but adds terms that suggest the government is to decide what is newsworthy, Davis said. It states breaking news coverage doesn’t need a permit, but is “subject to time, place, and manner restrictions.”

This can hinder the work of documentary making that is news, but not breaking news. It shouldn’t matter if it’s film, photography, or audio. If it doesn’t involve a large crew, equipment or disturb the land, it should not be subject to restrictions, he said.

According to the rule as it’s written, news coverage, like that of the fires that devastated Mt. Lemmon in 2003 would not require a permit; but soft news, like the recovery of the mountain, could, Dickinson said.

“Who are they to say what is news?” Mulford asked. "The land doesn’t belong to the government. It belongs to us," she said.

Over 50 comments were submitted to the Department of the Interior during its public comment period that ended October 19, and are currently under consideration as they begin revising it, said Special Park Uses Program Manager for the National Park Services, Lee Dickenson.

“We weren’t aware of how confusing the rule is written, but apparently it needs to be reworked to clarify out intentions,” she said.

The Department of the Interior wrote the rule, 43 CFR Part 5, intending to regulate activity involved in the photography or film projects, not what they do with the product, Dickinson said.

There is a large gray area with rules like this, and the government is trying to deal with it by expanding its control, when it should be reducing it, Davis said.

The Department of the Interior rule is to set a standard for the Bureau of Land Management, the U.S. Forest Service, and the Fish and Wildlife Service, and for others who decide to follow suit, Dickinson said.

“The draft Department of the Interior regulations for the most part, will make Department of the Interior policy more consistent with Forest Service policy,” Yandoh said.

It’s tough to administer these rules, Hohl said. Which is why SEJ and others worry about how the law will be enforced by the numerous national agencies, which is why they are calling for more definite language.

The agencies aren’t enforcing these rules strongly, and when they do, it seems quite arbitrary, Davis said.

There has not been a case yet which required any legal action besides a notice of violation. The primary goal of these fees and permits is compliance, not punishment, Hohl said.

Without more definite language and set consequences, compliance will be based mostly on the honor system, Davis said.

If the rule is passed with the existing language, Mulford said she would abide by it even though enforcement is minimal. “It’s an ethical question, for me.”

Hungate is a recent journalism graduate of the University of Arizona, and she's also a photographer.

Read about NPPA's president testifying on Capitol Hill, opposing the new rules