Legal issues for small-format
aerial photography

James S. Aber

Table of Contents
Introduction United States
Other countries Insurance
References

Introduction

Having worked through basic principles and technical issues, the aerial photographer also must be cognizant of local rules and regulations for flying and taking small-format aerial photographs (SFAP). Just as with manned aircraft, the operation of free-flying unmanned aerial systems (UAS) as well as tethered unmanned aircraft—balloons, blimps, and kites—comes under the legal constraints of aviation laws in most countries (Aber et al. 2010). Also, restrictions may exist for taking photographs from the air of certain objects or areas, e.g. public buildings, military grounds, power plants, nature reserves, or private houses.

The regulations for SFAP may be quite specific regarding the type of aircraft, flying height, survey area and mission purpose, and restrictions may range from none or few to special requirements of aircraft signaling, insurance obligations, or even absolute prohibition. Usually, third-party liability insurance coverage and overflight permission from the site’s owner or the local municipal administration are prerequisites for obtaining flying authorizations from aviation authorities.

Keep in mind, when planning a mission, that investigating and obtaining flying authorizations may take some time, as one authority’s permit may depend upon those of other agencies. Unfortunately it is not always obvious who is responsible for the permissions. If a civil authority grants the flight permission, it is still possible that involved police, military, or other officials may recognize problems. National parks, monuments and nature reserves often have restrictions. Long-term experience has shown that personal contact with involved officials and demonstration of the survey devices as well as presentation of examples of aerial photographs add to a positive solution.

It should be considered, nonetheless, that aerial photographs are frequently made for espionage purposes, both military and commercial; therefore, various people may be suspicious. This includes both public officers as well as commercial enterprises and private land owners. This applies especially to UAS and other free-flying aircraft, as opposed to tethered systems; the latter have limited scope and may be maneuvered and observed more closely.

All necessary permits and insurance policies should be carried personally into the field and ready to present immediately if required. Nothing is more annoying than having the aircraft positioned directly above the study site in perfect lighting conditions, and then be forced to break off the survey before taking the first photo by the local police or civil guard because the necessary papers with the right seals are lacking.

Considering the differing national regulations and the wealth of individual rules, it is not possible in this short review to give an accurate and up-to-date list of all legal issues. The reader should refer to the individual country’s body of aviation laws and related rules. Information about current regulations may be gathered from aeronautical authorities, insurance companies, and model flying associations. Nevertheless, the following sections aim to give an introduction to some of the diverse legal conditions that apply in selected countries. This review deals primarily with unmanned platforms for SFAP, including powered and unpowered as well as moored and free-flying. The following is given for information only and without responsibility for any eventual errors or omissions.

Regulations in the United States

The United States represents a varied set of conditions for small-format aerial photography, as regulated by the Federal Aviation Administration (FAA). Potential platforms for unmanned SFAP fall into several categories including UAS, moored balloons and kites, amateur rockets, free-flying balloons, and model aircraft. A further important distinction is hobby versus commercial use. Hobby use is strictly personal in nature and not connected in any way to a person's job or profession. Commercial use involves any type of salary, commission, work-for-hire, consulting fee, royalty, honorarium, grant funding, or payment of any amount in cash or in kind. Thus, for instance, a teacher, who gives a UAS demonstration for her or his students, is operating in a commercial mode.

The national airspace is available for public access, except where restricted for military, security, safety, environmental, or wildlife-habitat reasons. At the Don Edwards San Francisco Bay National Wildlife Refuge, for example, restrictions include no kite-flying or balloons (posted at refuge entrance). No private land owner may limit overflights for the purpose of taking aerial photographs; however, both private and public land owners may restrict access to their properties on the ground. Posted or No Trespassing signs are commonplace. For all ground operations, it is recommended to obtain prior approval from local authorities or land owners for launching and landing SFAP platforms, as well as for vehicle parking, equipment setup location, opening gates, crossing fences, etc.

Superwide-angle view looking northward over Rachael Carson National Wildlife Refuge surrounded by suburban housing. Nesting birds in the salt marsh are particularly sensitive to nearby activity on the ground or overhead, which they may interpret as predators. Special permission was necessary to conduct SFAP using a tethered helium blimp that had to be flown at least 90 m and no more than 150 m above the ground. Silent and near-motionless blimp operation at this height minimized possible disturbance of birds on their nests. Aerial photo by SWA, JSA and V. Valentine; Maine, U.S.
No trespassing signs are commonplace in the United States for both private land and public facilities. Water reservoir near Palm Springs, California.

Two cases from Kansas may be cited as cautionary tales. First is National Geographic photographer George Steinmetz. In 2013, Steinmetz flew a motorized paraglider over a feedlot in southwestern Kansas to acquire photographs for a series of stories on food. Flying through the national airspace over the feedlot and taking pictures with a handheld camera were completely legal activities. However, Steinmetz launched from private land without permission. He and his partner subsequently were arrested for trespassing and briefly held in a county jail before posting bond (Tepper 2013).

The second Kansas example involves kite aerial photography over a private lake. The SFAP session was done with the knowledge and permission of the lake owners and resident caretaker. While the kite was in flight and camera operating, the kite flyers were approached by workers from the local electric-utility company, who insisted that the kite must be taken down. They claimed the kite was flying over an electric distribution line and, thus, represented a safety hazard. However, the electric utility neither owns nor controls the airspace over its right of way and could not legally enforce this order. Nonetheless, the kite was taken down routinely in order to preserve good local relationships.

Kite aerial photograph at Lake Kahola, Kansas. Launch point was from private land with permission. The tethered kite and camera were flying ~100 m above the electric-utility right of way, which services that same private land. Utility poles are marked (<); approaching electric-utility truck is visible on right side. Contrary to the opinion of electric-utility employees, this use of the national airspace is entirely legal in the United States, as the kite did not pose an imminent hazard to the distribution line. Photo by JSA and J. Schubert.

Rules for flying tethered platforms, such as balloons, blimps, kites or gyrogliders, are spelled out in FAA Part 101 (GPO 2012). Such aircraft may be flown up to 500 feet (152 m) above the ground without a special permit in most circumstances. Flying such platforms higher, however, requires filing a flight plan with the nearest airport. On the other hand, manned aircraft should not be flown below 500 feet height in the countryside and not below 1000 feet in urban areas. No person may operate a moored balloon or kite:

Further restrictions deal with lighting and marking for nighttime and daylight flight and rapid deflation for balloons. This rule has additional requirements and restrictions for operation of unmanned free balloons and amateur rockets, which also might be used for SFAP (e.g. Dunakin 2008). Part 101 does not make any distinction between hobby and commercial uses or applications, nor does it specify any pilot qualifications.

Model aircraft is separate category for FAA regulations. Certainly conventional fixed-wing model aircraft have been utilized for SFAP in the past (e.g. Quilter and Anderson 2000), and UAS platforms fall under the umbrella of model aircraft rules. Specifically the FAA has defined a model aircraft as an unmanned aircraft that is (1) capable of sustained flight in the atmosphere; (2) flown within visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes (FAA 2014). For SFAP applications, the third item is of most importance, namely that the aircraft is flown strictly for hobby or recreational use. The only exception is the commercial small UAS pilot qualification noted below.

Radio-controlled, gas-powered model helicopter that could be fitted with a compact digital still or video camera. Helicopter is highly maneuverable, but noisy; rotor diameter is ~1.35 m. Flying such a model aircraft requires considerable pilot skill. Photo by JSA.

The distinction between hobby and commercial operation does play a significant role for small UAS aircraft regulations, which are given in FAA Part 107, as finalized in 2016. Some basic considerations apply for both hobby and commercial UAS (adapted from FAA 2016a, 2016b).

The primary difference between hobby and commercial use is for pilot qualifications. For hobby UAS, the only requirement is minimum age of 13 or accompanied by a person 13 or older. A person operating a small UAS for commercial purposes, on the other hand, must be at least 16 years old and either hold a remote pilot airman certificate with a small UAS rating or be under the direct supervision of a person who holds a remote pilot certificate. Of the restrictions noted above, most may be waived for commercial flight, if the applicant demonstrates that ... operation can safely be conducted under the terms of a certificate of waiver (FAA 2016a).

Regulations in selected countries

Flying-height regulations differ considerably in individual countries elsewhere (Aber et al. 2010). In the United Kingdom, for example, normal flying ceiling for tethered kites is only 60 m, which is not enough height for many SFAP purposes. Special application to the Civil Aviation Authority (CAA) is required to fly higher, but the application procedure may take three weeks for approval, and then the scheduled mission could be spoiled by bad weather. Across the sea to the east, Denmark is a country where many forms of kite flying and kite festivals are extremely popular, especially along the North Sea coast. The maximum kite flying height is 100 m (see KAPwiki).

Cliffs along the North Sea coast near Lønstrup, northwestern Denmark.
Mårup Kirke, a small country church and cemetery, in lower right corner.
Kite aerial photo by SWA, JSA and I. Marzolff.

In Spain, where model aircrafts come under the regulation of a royal decree to article 151 of the aviation law (artículo 151 de la Ley sobre Navegación Aérea), unmanned aircrafts—balloons, model airplanes and rockets—may ascend up to 300 m without authorization, provided they are more than 10 km away from airports and feature some sort of self-destruction or deflation mode in case of remote-control failure or tether-line rupture. For all exceptions, permission by the AENA (Aeropuertos Españoles y Navegación Aérea, Dto. Coordinación Operativa del Espacio Aéreo) is required, and additional approval is necessary by the military if the study site is located in militarily sensitive areas.

India is a country well-known for strict security; in fact, taking any kind of aerial photograph is prohibited under nearly all circumstances. In order to conduct kite aerial photography, Chorier had to obtain permissions from various governmental agencies, and he had to carry permits with him or risk arrest by local police which happened several times (Chorier and Mehta 2007). The Khumb Mela, the largest religious gathering in the world, takes place every 12 years at the confluence of the Ganges, Yamuna, and mythical Saraswati rivers. He was authorized to take kite aerial photographs of preparations for the celebration, but not the actual Kumbh Mela, whereas all other types of aerial photography, even military, were ruled out by officials. In other cases known to the author, people who attempted SFAP met with stiff resistance from Indian authorities.

China is another country with strict regulations related to small-format aerial photography, as the author learned during negotiations to conduct kite aerial photography in Tibet. For example, any form of radio transmitter, which may be necessary for operation of an aircraft or camera apparatus, is highly restricted. Likewise, China tightly controls geographic data and use of global positioning system (Dougherty 2016). Map displays and GPS positions are deliberately offset, in a manner similar to geographic distortions during the Cold War in the Soviet empire. This effectively rules out GPS-enabled aircraft and cameras.

In Germany, several laws and orders are in force concerning the use of unmanned model aircrafts. For the SFAP user, the ascent of an electrically driven model aircraft with an overall weight of less than 5 kg, >1.5 km to the next residential area, and >1.5 km to the next airfield is possible without any permission. Kites and parachute kites are not allowed to ascend more than 100 m and blimps not higher than 30 m without permission. According to the interpretation of the law by German authorities, these measures refer to the total length of the tether lines on the reel and not the actual height or the amount of uncoiled line during the flight. Particular security regulations are in force next to civil and military airfields; these may even apply for considerable distances up to 60 km away.

Land ownership rights vary substantially in other countries. In Slovakia, for example, the public is allowed access to walk or drive a vehicle into harvested or fallow agricultural fields, as long as the ground is not disturbed. However, access or disturbance is prohibited in agricultural fields with planted or growing crops. Land owners may not restrict access to fallow ground, and such fields are often convenient places for SFAP operation. The author has conducted kite aerial photography in many locations throughout Slovakia and never encountered any concerns from the public or authorities about these activities.

Conducting kite aerial photography from a fallow (weedy) field adjacent to crops.
Near Spišska-Bela, Slovakia; aerial photo by SWA, JSA and I. Duriška.

In contrast, the Tatra Mountains of Slovakia and Poland are protected in national parks; all public, commercial, and scientific activities within these parks are strictly regulated. Obtaining permission for SFAP requires the assistance of local colleagues and may take considerable time, even months, to arrange in advance. Necessary permits must be carried in the field at all times while conducting SFAP in these circumstances, and it is best to have local colleagues along to explain the activities and mission.

Kite aerial photography in Tatra National Park, Poland. Left: zezwolenie (permission) to conduct kite aerial photography for geological applications. Permit was approved in April 2007 for a limited period, July 15 to August 15, 2007. Right: panoramic view toward northwest over Skupniów Uplaz ridge (lower center) in the Polish Tatra Mountains (Aber et al. 2008).

UAS, as noted above, represents a special category. To continue with the Slovak example, UAS are divided into three classes, namely air-toy, recreational, and commercial (DLI Slovakia 2016). Regulations generally resemble those of the United States, and commercial operation requires a special license. Thus, for instance, a small UAS may be flown with a few common-sense restrictions; whereas a larger UAS requires a pilot license. For the countries discussed here as well as any other country, relevant aviation rules, regulations, and policies should be consulted early-on for planning a SFAP mission. Summaries of UAS country regulations are available from Drone Law In...

Unmanned aerial systems in Slovakia. Small UAS (left), dji Phantom with a tiny camera flying over a former open-pit mine site in Košice. Large UAS (right), Aibotix hexacopter on display indoors. The latter requires a fully licensed pilot for flight operation. UAS demonstrated by P. Blišt'an; photos by JSA.

A prize-winning UAS photograph from Indonesia illustrates some of the issues. In 2014, National Geographic held its first drone aerial photograph contest, and more than 1000 pictures were entered from around the world. First prize went to Flying with an eagle, Bali Barat National Park, Indonesia, a close-up picture of an eagle in flight (Vrignaud 2014). Two aspects are troubling for this situation.

Many people considered this situation as wildlife harassment. Raptors are often attracted to kites and other tethered platforms; once they determine the object is non-living, they loose interest. However, drones mimick bird flight characteristics and might be perceived as competitors or potential food; a collision surely would injure the bird. Whether this drone flight and photograph were legal in 2014 is unknown. According to Indonesian aviation law (PM 90) approved in 2015, any drone carrying a camera would require a special license issued by the authorizing institution and approved by the local government (HPRP 2015). In any case, the eagle picture certainly raises ethical concerns about appropriate use of UAS.

Insurance

Generally, third-party liability insurance is a requirement for obtaining flight clearance, and also would be in the best interest of SFAP operators anytime (Aber et al. 2010). A summary of insurance offered for model builders and flyers by various German organizations with identification of possible loopholes has been compiled painstakingly by Steenblock (2006). These insurance packages are included in the membership fee of the organizations and customized to the specific activities of the members. Another option is separate insurance policies that may be taken out by individuals or institutions. In this case, a specific model aircraft or blimp may be insured according to its registration number.

In other countries, individuals may seek insurance through hobby or professional organizations. In the United States, for instance, the American Kitefliers Association provides limited liability insurance at officially sanctioned kite competitions and tournaments. Another option is a professional rider that may be added to an individual’s homeowner insurance policy. When acting in professional capacity, for example teaching a field-methods course in SFAP for a university, the individuals and activity may be covered by the institution. But the conditions and exclusions vary greatly with each type or source of insurance, so SFAP operators need to pay some attention to appropriate coverage.

References


Return to SFAP schedule.
ES 555 © J.S. Aber (2016).