Here is a link to the actual US Forest Service “Interim Directive” (ID). The USFS is proposing that this ID be made permanent. Please read the actual text for yourself: http://www.fs.fed.us/specialuses/documents/InterimFilmingQAimprovedjune10.pdf
In summary, it says that:
- you do not need a permit for any still photography including commercial still photography as long as you do not use actors, models and props, or locations normally unavailable to the public. If you use actors, models or props or need special access, you must apply to the USFS for a permit describing your content. Your proposed content must be approved by a USFS censor to ensure that it meets the specific objectives of the agency (see the ID, above).
- you do not need a permit for recreational photography or video
- you are required to have a permit for any motion picture, video recording or audio recording … if it is used to generate an income regardless of whether you have actors, models or props involved. If you post your video clip on Youtube with an ad, you need a permit. Stated another way, pressing the red button on your camera will cost you a bundle.
Still photographers can press the silver button, take still photos and sell them.
However, if they press the red button on the exact same camera, while standing at the exact same location, and post that video on Youtube with an ad running alongside the video, then you are required to obtain a permit, your permit must be approved by a USFS censor, and may be required to have liability insurance and to pay for a USFS ranger to monitor your activities while you press the red button.
The media got excited about this ID when they noticed the USFS has been enforcing part of the rule that says the news media is exempt only for “breaking news”. All other media use would require a permit and approval of the USFS censors. In actual fact, twice in the past month, a local public broadcasting TV show in Idaho was told by the USFS they must have a permit. In one case, they wanted to film students digging for garnets on USFS land (not wilderness land).
Yesterday, the head of the USFS backpedaled and says they never intended this to apply to the news media. That is not true. The Oregonian newspaper, 3 days ago, specifically asked a USFS official for permission to take photos in the Mt Hood Wilderness and was told they needed a permit. The next day, they drove up to Mt Hood, and without permits, took photos and posted them in their newspaper. A day later, the USFS backed off.
However, the rules still remain as I have summarized. The USFS is attempting to select the means of expression (still versus film, video or audio recording), and to approve the content of the latter 3. In the US we have the First Amendment, which is as close to a sacred document as we come here. This Amendment prohibits the government from controlling our speech or our desired method of expression. Citizens and the media are both protected. A professor of communications (journalism) is quoted in an area newspaper as saying he is astonished that this obviously unconstitutional issue was not recognized by the USFS staff when putting this rule together.
In the end, there are 3 main issues:
1. The USFS is selecting the means of expression (still photography given favorable treatment versus everything else)
2. The USFS defines “commercial filming” overly broadly and absurdly. The guy with his tripod, huge camera and 2 foot long lens taking still photos and selling them does not need a permit. The lady next to him shooting video with an iPhone that she posts on Youtube with an ad alongside, must apply for a permit and be approved by the USFS censors. This is utter nonsense.
3. First Amendment issues galore. The USFS is not only controlling the means of expression, but also states (states in plain language in the ID – this is not some wild assertion) that the content must meet their content requirements and be approved by the USFS (literally a censor, which is why I use that term).
The rule should be written to focus on the impact on the land and the USFS resources – and not be focused on the means of expression or the content.
Because the USFS has backed off the media requirements, the media may fade away from this issue. And because they exclude most still photography, I’ve seen still photographers posting on social media that this is just an old rule, nothing to worry about. Because it does not impact them.
Big production companies know they need permits and plan for it.
That leaves individuals that wanted to press the red button under threat as most do not have the legal resources to fight this absurd rule to the Supreme Court. Literally, press the silver button and drive to the bank; press the red button and pay a fine. Or use an iPhone. It’s absurd.
Some are now posting on social media and blogs that this is all blown out of proportion, etc, etc. Apparently none of them have read the actual text of the Interim Directive. Some are partially correct in that it mostly does not apply to still photographers – but it very much applies to individuals pressing the red button on their camera. This is not a time to tell people to ignore this and claim there is nothing to see here. This remains a very big deal.
This is our government and our public lands; this is not their private kingdom.
I encourage all still and video photographers, including hobbyists, to read the full Interim Directive above and then to file comments at this web site: https://www.federalregister.gov/articles/2014/09/04/2014-21093/proposed-directive-for-commercial-filming-in-wilderness-special-uses-administration
To further clarify their “means of expression” control, consider a different example. Suppose a poet sat in a meadow writing poetry (for later resale). This would be considered acceptable and no permit would be required. Now consider a person sitting next to the poet, but composing music (for later resale). The USFS makes poetry permit free but requires a permit and liability insurance for the composer. Makes no sense does it? But that is what the USFS is doing.
