ckoerner
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Shot by Justin Barr, a talented local drone videographer and photographer!
Private Propery Drone Policies?
- Thread starter Severian
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My feeling is that flying over private property should not be allowed without the land owner's permission. This may seem ridiculous to some, however, to others, it is a privacy issues. I don't have an opinion as to what happens on public property, but I wouldn't want another person's drone flying over our property - especially taking photos and video. I think to respect another's property is a good thing for the drone industry/hobby. I'm in favor of shedding a positive light on drone use and IMHO respecting the wishes of the property owner seems to me a good idea. Enough property owners get ticked, and we are liable to see some sort of legislative action that could unleash a whole can of worms restricting drone use way beyond flying over private property.
Just my thoughts...
Just my thoughts...
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It seems to me that the Garden would have the right to require a permit IF photos taken from the air were to be used for "commercial" purposes. That does not necessarily mean sold for profit. Placed on the internet, even your own Facebook page would be included in that, just as if you were carrying your camera around on the ground.
Chip
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If the Garden has the right to declare in advance that any flight over its property by drone is a “commercial” endeavor requiring a special permit, then where does that leave us? If the Garden can do it, then can any private property owner?
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Rich QR
Well-Known Member
The Garden doesn't have that right and doesn't attempt to do that. The FAA controls flying through the National Airspace System.
The Garden can resrict takeoffs and landings from their property, as well as disallowing use of their property by a drone operator or visual observer. Combined with the VLOS rules, this may have the practical effect of at least limiting the lowest level flights over the interior of their property.
What the Garden does attempt to do is to declare that any photography using drones is treated as commercial photography. I have doubts about whether they can do that, but I'm not sure they can't.
It's pretty clear that copyright law gives them pretty broad rights to restrict the publication and distribution of photographs and videos of their creative works as they see fit. To what extent they can restrict the mere taking of photos by a drone which is overflying their property while complying with FAA rules, I'm not so sure.
Until I hear of a body of settled case law, I'll reserve judgment. Personally, I don't feel like spending the money on the court case that would produce that body of settled case law.
Anyone that creates and displays ‘art’ can certainly make a copyright claim over likenesses of it and make a good faith effort to enact policies that govern licensing rights. The fact that you/we/someone are trying to capture it with a drone mounted camera, a DSLR, or a medium format rig makes no difference. I don’t think a property owner could do the same if they didn’t host copyrightable material on public display (say you wanted to fly over to capture the natural landscape for instance) or the artwork was old enough to be in the public domain (pre 1926). Buildings on the other hand (pre 1990) are fair use and you might be able to argue over government-created gardens/parks since gov (docs at least) are public domain. And again, if you can argue you are making fair use for private study, research, or are attempting to make social commentary, report news, or to create a substanativly different derivative work, you have a better legal case if it were to come to that. Gardens, arboretums, and cultural heritage sites have had these sorts of policies for years, many universities do as well. This one just happens to have updated theirs to the modern era. They aren’t saying no, they just want to control the media to some extent, ensure it’s safe for their patrons, and get their cut.
I have no problem with them restricting flying from there property. They have that right. Once the drone is in the air they have no jurisdiction. Zip, Zero, Nada unless they get the FAA involved. What gets me going is they automatically declare drone photography as commercial and demand payment. You can’t pick and choose like that. Either photography is allowed or not. What kind of equipment you use is irrelevant. If someone can take a selfie there or video of their kids playing without paying a commercial fee the a drone flying over can too.
Don't promote nor bother with defectively run business's, its better to ignore them so they rapidly go out of business. Since only the truly defective publish the fact publicly on a sign that they punish all for the sins of no one.
I have to disagree about private property in general, the FAA considers drones to be aircraft. So to prevent a drone from flying over someone's private property, they would have to ban any private aircraft from flying over it. There are huge swaths of private property meaning that commercial airlines wouldn't be able to take a straight course because some landowner in Texas decided to say no aircraft over his property and he owns a few thousand acres. And the FAA is being lobbied now to allow drone delivery, which means they can't just reclassify UAS and say those can't go over private property without impacting future rules regarding commercial drone use.
They can't even really limit the altitude for aircraft over private property, banning all aircraft except over a certain altitude would impact airports, making most of them unusable. News helicopters would be limited in where they could fly, and it would overly complicate things as to what the perceived ground location of an aircraft in the sky vs GPS coordinates for lawsuits. It would completely ruin hot air balloons, private aircraft, ultralights, skydiving, hang gliders and more.
I agree that privacy should be maintained, and I won't be taking photos of a place that has gone out of their way to say "ask permission" that I didn't get said permission. But the question of what is legal is different than what is ethical and moral.
Back to the OP
Check local laws concerning drones. Where I am, the state specifically says that it controls drone use, and that no municipality can alter it, however many towns have ordinances about it, just not enforceable.
Just to illustrate the ridiculousness of the sign, does the Garden state that if a person charters a plane to fly over the park at 700' and someone hangs out of the side with a massive telephoto lens, allowing them a better shot than what the drone did, that's OK and not commercial but a drone at 300' is commercial? Saying the drone might crash, well so could a Cessna... If they allow land based people to photograph it, then they have no say over a drone (except maybe launch and land on site).
I would agree that the garden has copyright over any likeness of their works, but their copyright does not include editorial/personal use.
And I don't think the park gets to determine what's editorial vs commercial, that is well defined in case law and precedent, but it doesn't mean they won't spend some money making it a nightmare for you...
As above, just my opinion... Local laws and ordinances were not considered in this post!
Thought experiment: it’s 2023 and you have one of the new mavics with a 2 hour battery. You decide to fly over a drive in movie theater, launching from outside the gates, point the camera at the screen and start recording the new He Man movie. The battery fails at 1:45 because it’s cold, it falls and strikes a kid who’s parents sue the theater owners for failure to anticipate your actions. Regardless of your intent to post to YouTube or keep a copy at home for your own private entertainment this is the basic deal. They are making a licensing and safety claim. Don’t abid by these things if that’s your jam but it will further erode relationships and good will with the public.
ckoerner
Well-Known Member
Agreed. There are laws and then there is being a decent human.
Edit: expanding my thoughts.
If I was at the garden enjoying the day with my family I would not want a drone buzzing around overhead. Even at 300ft up I can easily hear my Mini 2. It would be worse with a larger drone or one at a lower altitude.
If you really need a drone shot of the gardens, talk to someone in the administration and see if you can work it out. Ask a couple times nicely even. Be ok with them saying no.
Knowing they are asking you not to record and trying to get around that is cowardice.
Here’s one example of someone filming with apparent permission from the garden.
We are all ambassadors for this relatively new hobby. I implore us to be better than “just the law”.
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Oh I like these... so I'll bite on this bait...
Not sure how it even applies. So first, you are legally liable for any damage your drone does, just like driving a car. Change it to a car in the parking lot, hits a kid, do the parents sue the theater because the theater didn't anticipate the driver running over a child? No, it goes to auto insurance for the driver.
I mean what would happen if a Cessna crashed into the theater? Would the parents sue the theater because that's the premise in this thought experiment, or would the pilot be liable? Or are we back to limiting where all aircraft can fly, remember, the FAA sees a drone as an private aircraft, similar to a Cessna, just one is manned the other isn't. (other differences as well, but in this case...)
Also, you are flying at night, over people who may not be under any cover (most drive-ins allow you to sit outside your car, or in a truck bed), making the flight likely illegal in the first place, but not because of the property ownership status, but rather because of the sustained Flight over people and night time flight rules. Also, the theater could have your drone likely removed as a public nuisance with it's 3SM strobe attached. You also said it was a DJI drone, which won't crash when the battery runs low, they land, making this even less likely to have happened.
They sue the theater, but the liability is on you, the case is dismissed by the judge once the FAA provides your name, since the drone crashed and caused bodily harm, the FAA would investigate. If you didn't report the accident, then there are larger proceedings in your future. If you did report, then they would never have sued the theater, just you.
Now, the copyright owner, Matel or whoever made the movie, now sues you because that is theft of a copyrighted movie, and DMCA applies to it. The FAA provided your name to them as well, and just attempting to steal the movie is illegal, with fines up to $500,000 for a first offense just for possessing it (or part thereof) illegally. Once again, nothing to do with flying over the site, it happens to be what you are doing while flying over it.
So, was it illegal for you to fly over the drivein? No, not at all. Was crashing and causing bodily harm and not reporting illegal? Yes. How about theft of a DMCA protected movie? Yep sure is. They would be in a TON of trouble, and probably see jailtime for it and massive fines, but none of it would have anything to do with the actual flight nor location, but rather what you did while flying.
And if you want to say you did report the crash, then it is an insurance claim, not a lawsuit, unless you did more damage than your insurance covers. If you are a hobbyist, you should have the AMA insurance, and if you are commercial you should have business insurance. Good luck with the FAA fines and the DMCA lawsuit however.
I did say in my original post here, that what's legal and what's moral/ethical are not always in alignment. But my point was, you can't restrict private aircraft flight over private property without completely ruining several major industries, Hot Air Balloons, Gliders, Ultralights, skydiving, recreational pilots and more.
Also I can see 100% of a drive-in theater from 50' in the air and across the street eliminating the risk of hitting someone. Maybe the pilot just needs to attend some flight safety meetings...
Funny part is, people would see a hot air balloon and be fine with it, and have no problem with a photographer taking out an insane telephoto lens and taking pics from a hot air balloon because they wouldn't know, but the drone they KNOW has a camera, and that starts all sorts of paranoia.
Funny part is, My Mini 2 is at least twice as loud as my MA2S. I track the mini by sound even at 500', and I completely lose the sound of my A2S by 300'. There are 2 issues in the OP, one, flying over private property, and two, photographing a work of art that the owner says "Please do not do". I agree to work with the Garden if that's what you want to photograph, but their rules aren't law.
We risk the problem, if we carve a niche out for ourselves that is completely different than any other aircraft, we could lose all of the protections provided by being an aircraft.
Your over thinking it. My point is that these sorts of polices are incredibly common for photography at gardens all over the U.S. The drone doesn’t matter. The actual policy makes it clear they want some say in the matter, they want you insured, and they want to be paid because (in their view) the grounds contain their intellectual property.
Really? Is that why they don't restrict photography UNLESS it is by drone? If it is a "no photography" area, then I say 100% you have to abide by that, but if they allow a hot air balloon to fly overhead, and the operators can take all of the photos they want and the posted rules allow for it, then it is simply an anti-drone rule. So still 2 issues, flying over, they have no legal say, and since you can walk in and take 100 photos of it and post it all over the place, they aren't concerned about their intellectual property either, and even if they were, as long as you don't use it commercially they have no legal footing since they don't care about you using a Cannon EOS.
They are trying to use a legal loophole to gain control of "Drone Photography" because they know it is 100% legal to fly over, and it is 100% legal to take pictures without permission, and it is 100% legal to have those images as long as it is not used commercially. They even allow ground photography as much as you like so they are NOT concerned about their IP.
But they say (paraphrased) "We consider it all commercial photography if you use a drone, but if you use a hot air balloon, then it is editorial". The garden doesn't get to classify editorial vs commercial use, that has a ton of case law and precedent behind it. But they are trying to to force control over something that they legally have no jurisdiction.
Law is, they can't control it. Moral and ethically, if they allow it by hot air balloon, then they don't care about you taking aerial pictures and there is no mention of hot air balloons, they only care about controlling something they don't fully understand. Why not say "All aerial photography will be considered commercial in nature and we will enforce our copyrights"? Still only legally prevents you from using commercially, but that's what they are doing. Same as if you shot a BB gun inside the city limits, and the cops arrest you for discharge of a firearm. The cops don't get to classify the BB gun as a firearm just because they don't like the brand, same as the garden doesn't get to classify drone photos as commercial just because it was on a drone. Equipment doesn't matter, and they don't stop you from using a tripod with a wireless actuator, it's the same as a drone.
ckoerner
Well-Known Member
They do restrict photography in other ways beyond drones. Here is the garden‘s rules for photography.
ckoerner
Well-Known Member
We already have a niche. UAV laws are different than helicopter laws, than hot air balloon laws, etc. Specificity and nuance in law – applicable to countries and situations – are already the norm.
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How is that?
"We welcome visitor snapshots; individual, family, engagement and senior class portraits; and other photography or portraiture intended for personal use only (i.e., not for commercial use). "
The Garden doesn't specify, and legally can't, if an image is commercial or editorial (personal use in their text). Judges have already ruled many times on what is commercial and what isn't in relation to photography, and they allow any non-commercial, unless by drone, while still allowing hot air balloons and Cessna's to do the exact thing they are saying a drone cannot.
There are nuances, but my point is we are considered aircraft. If you want to argue that you should only fly over land you have authorization, even though every other aircraft can fly over it, just not drones, then we shouldn't be able to fly over public property without authorization either. Why? Because the public is there to use it, and they would have the same expectation of privacy on public land as they do in their unfenced front yard. And as other posts have pointed out, a guy was flying 125' over his own 10 acre parcel, and his neighbor came out screaming at him, he wasn't over someone else's property, over his own, yet the neighbor told him he wasn't allowed to do that. So by that logic, you need a 1000' buffer between private property border and a flight, and most people do not have access to acreage like that unless it is public or commercial.
We just should just agree to disagree. I am saying we need to keep this open, and push to remove bad actors in the industry. What I am getting from you is we should have everyone restricted, even those of us trying to actually make a living at this by writing rules and laws that prevent the reasonable use of the technology except in rare circumstances, and more regulations and less ability to use the drones impact our way of life.
My point, if it is legal for a cessna, it should be legal for a drone. Both are aircraft. If you want to argue that the rules for a cessna are different, yes, it is a different class of aircraft, but the FAA rules allow them to fly over and photograph it and drone rules are similar while taking into account the differences in use.
Anyone recall back in the day people flying over with heli's or cessnas, taking pics of houses, then going door to door trying to sell aerial shots of the homes? That was and is completely legal. How is that any different than a drone? Basically as I stated before, everyone expects all drones to have a camera, but a cessna they expect not to, even though pilots have proven them wrong over and over. I never bought one of those photos, but I do know people who did, 100% unsolicited photo of their house by cessna, in stunning detail with a high quality zoom lens.
ckoerner
Well-Known Member
halifax
Well-Known Member
If their facility is the subject of your flight, and you have any intention of posting said video on the web, you might want to consider asking permission before you fly. We are in a steep education curve with the public and the more allies we make, the better it will be for all of us. Just a suggestion.
whicks1, thanks very much for your reasoned analysis. Very illuminating.
whicks1, thanks very much for your reasoned analysis. Very illuminating.
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