Do you film videos for your YouTube, TikTok, or other social media site? If you shoot video on property managed by the National Park Service and your site is monetized, look out! Ditto for still photos that you end up posting. A recent court ruling says anyone who has the “intent of generating income” from video shot in national parks—and other lands managed by the Service—must receive advanced permission to do so. Shoot without a permit and post it, you may find yourself in the crosshairs of the law.
The simple act of photographing or videotaping a funny animal in, for example,Yellowstone, and then posting it online may once again be illegal just because a permit was not obtained beforehand.
Fine and permanent ban for video
We’ve covered this topic before. Back in 2020, a couple of young YouTubers, Kara and Nate, ended up on the wrong side of a permit issue. They’d shot some video on land managed by the National Park Service and posted it on their YouTube site. Their site was monetized, and although they may have made very few dollars, they ended up spending a lot for their error. The Park Service got wind of the video, and notified the couple that they needed to turn up and answer for their violation or face arrest warrants. In the end, Kara and Nate wound up with a $1,000 fine, and a permanent ban against shooting videos on NPS-managed lands.
Not the first “permits in the park” case over videos
It wasn’t the first time someone ran afoul of the “permits in the park” issue. In 2018, Gordon Price, an independent film director, was “nailed” filming in the Yorktown Battlefield in Virginia’s Colonial National Historical Park. Price was working on a film about unsolved murders. But Price’s crime earned him a citation for filming without a permit. Price argued, successfully, in court that his free speech guarantees were stepped on if he were required to get a permit. In January 2021 a court ruled it was illegal for the Park Service to require filming permits.
The situation didn’t end with that ruling. Last August, in a decision that flew under our radar, a court panel overturned the ruling. In a two-to-one vote, an appellate court ruled that Price’s arguments that his First Amendment rights were infringed on didn’t hold up to the court’s test. Essentially, the court said that while Price could have stood in the middle of the Yorktown Battlefield to state his viewpoints, filming them there and then later releasing the video was a different matter.
Judge Douglas Ginsburg wrote that because “a filmmaker does not seek to communicate with others at the location in which he or she films, the filmmaker does not use the location as a ‘forum’.” Having made this determination, the appellate court declined to apply a public forum analysis, and further held that filmmaking “is not itself a communicative activity; it is merely a step in the creation of speech that will be communicated at some other time, usually in some other location.” Rather, the court determined that filmmaking was a “non-communicative first amendment activity.”
Not just a free speech issue
The ruling raises all sorts of issues, not just in the realm of “free speech” rights. Freedom of the press is another question mark. Popular YouTuber and attorney Steve Lehto raises questions like this one. Suppose you and your family are shooting videos in a national park—strictly for your own use. Obviously no permit would be required. But suppose that while you’re on the scene, something newsworthy takes place. Of course, you film it. Maybe you post it on your TikTok account. You didn’t come to the park intending to shoot “commercial” video, it just happened. If you post it, without having a permit, will you be facing charges of law breaking? Is the media, no matter how “mom and pop” it may be, required to have a permit to report the news?
Park Service rules that may affect you
After the court ruling, the National Park Service was quick to reinstate its filming permit requirements. In late October of last year, the Park Service posted its renewed policy. Here’s the pertinent information:
What is “commercial filming”?
“The film, electronic, magnetic, digital, or other recording of a moving image by a person, business, or other entity for a market audience with the intent of generating income [italics ours]. Examples include, but are not limited to, feature film, videography, and documentaries. Commercial filming may include the advertisement of a product or service, or the use of actors, models, sets, or props.” That reference to “generating income” includes social media. The Service adds, “This includes individuals or small groups that don’t use much equipment, but generate revenue by posting footage on websites, such as YouTube and TikTok.”
Do you need a permit for “non-commercial” filming?
“Individual parks may require a permit for non-commercial filming if necessary to manage the activity, to protect park resources and values, minimize conflict between user groups, or to ensure public safety. Examples of non-commercial filming include, but are not limited to, filming for tourism bureaus, convention and visitor bureaus, student filming, and filming for personal use and enjoyment.”
Filming for “personal use and enjoyment” happily includes school graduation and wedding photos. However, if you’re a pro videographer, it would appear you’d fall back under the “commercial” film-making context, and a permit would be required.
What about still photography?
Here’s the NPS writeup: “In most cases, still photography does not require a permit. A permit is required for still photography only when: The activity takes place at location(s) where or when members of the public are generally not allowed; or the activity uses model(s), sets(s), or prop(s) that are not a part of the location’s natural or cultural resources or administrative facilities; or the National Park Service would incur additional administrative costs to monitor the activity.”
Mind you, a model doesn’t just mean a person. It could also include “individuals, animals, or inanimate objects, such as vehicles, boats, articles of clothing, and food and beverage products.” Doing stills for a “Sasquatch Soda” campaign? You’ll likely need a permit.
So how much does a commercial permit cost?
Much depends on circumstances such as how much equipment and how many people. You may be able to get a permit for free, provided you’re talking about just one person with a camera and a tripod. Increase the number of folks to, say, 10, a $150-per-day fee is listed. Fees increase proportionally, maxing out at $750 a day if 50 or more people are involved.
Of course, you may be in for more than just permit fees. Depending on what the Service sees is involved from your application, other financial bites could be incurred. “Liability insurance naming the United States as additionally insured in an amount commensurate with the risk posed to park resources by your proposed activity. You also may be required to post a bond to ensure the payment of all charges and fees and the restoration of the area if necessary.”
How does the permit process work?
Applications for permits are obtained from the Service office overseeing a given property. A multiple page form asks for personal information about the applicant, including social security numbers or tax ID. A “description of the proposed activity” and a list of equipment to be used is required. And a specific location of the shoot and the timing of activities are also needed. You’ll also be asked about how many people are involved, and the number and types of vehicles.
It goes without saying that a “permit” requires evaluation before permission is granted. The specific amount of time needed to analyze and grant permission is up to the individual park management. The more complex the operation, the longer your response time will likely be. Don’t expect you’ll be able to pull into the park, fill out a form, and start shooting that day.
Could be a “full court press”
The bottom line of the overturning of the original George Price ruling makes it tough for even “little guy” videographers. Price’s attorney says that since the case was heard before a panel of the appeals court, they will press to have the full court rule on the matter. In the end, depending on the outcome, the whole issue could become a “full court press” for the Supreme Court of the United States.