When Do Photographers Need A Permit to Photograph or Film on Public Land? A FILM Act Update
By: Sean Fitzgerald
When does a photographer need a permit to take photos or videos on public land? Does it depend on whether the work may be used commercially in some way? Or are permits only required when there is an impact to the park above and beyond the impact of a general park visitor (e.g. special access to or exclusive use of an area, administrative oversight and assistance, etc.). Unfortunately, the answer varies greatly between federal and state public lands. NANPA’s belief is that the permit inquiry should be based solely on the impact to the land and park resources and other visitors, and not on whether the usage is in any way “commercial.” As discussed below, NANPA has helped change federal laws on the matter to an impact-based test and hopes to help states adopt a similar approach.
Federal Law From 2000 -2024 (PL 106-206)
First, a little history. In 2000, Congress passed PL 106-206 governing the issuance of photo permits on federal lands operated by the Department of Interior (e.g. National Parks, National Wildlife Refuges, BLM Lands) and the Department of Agriculture (e.g. National Forests and Grasslands). The law required a permit for all “commercial filming” but excepted still photography from the requirement unless special access was needed, models were used, etc. The law was partly intended to ensure that the federal government obtained compensation for larger film productions using public lands which usually required large film cameras, crews, and support equipment.
PL 106-206 was problematic from the start. What constitutes “filming” and determining when its use is “commercial” has never been well defined. These lines blurred further with the advent of digital cameras and mobile phones that can instantly switch between photography and video and the rise of social media, YouTube as means to share images and videos with the public.
To top it off, in the view of NANPA and many others, photography is a manner of expression protected by the First Amendment and requiring a permit simply because it might be used commercially constitutes an unreasonable restraint on that right. NANPA and ASMP thus supported lawsuits to declare the “commercial” usage test unconstitutional and joined with the National Press Photographer Association and the Professional Photographers of America to push Congress toward replacement of PL 106-206.
Passage of the EXPLORE Act and the FILM Act
Over the last several sessions of Congress, a bipartisan coalition in the House and Senate worked to move the omnibus Expanding Public Lands Outdoor Recreation Experiences Act (EXPLORE Act) through Congress. The EXPLORE Act combined multiple acts together into a single omnibus bill (e.g. Biking on Long Distance Trails Act, Protecting America’s Rock-Climbing Act, etc.). One part of the bill was the Federal Interior Land Media Act (FILM Act), which was originally introduced as H.R. 8258 by Congressman Russ Fulcher and passed out of the pertinent House and Senate committees for inclusion in the EXPLORE Act.
H.R. 8528 represented a huge victory for photographers over PL 106-206 but did contain several problematic sections. Working closely with Senator John Barrasso of Wyoming and Senator Joe Manchin of West Virginia, we successfully worked out revisions to the original bill (H.R. 8528) that all “four corners” of House and Senate Democrats and Republicans agreed to and intended to include in the final bill. Unfortunately, that never happened. At the end of the last session of Congress, the Senate rushed to pass the EXPLORE Act despite knowing that several sections still needed to be amended. On December 19, 2024, the EXPLORE Act passed without the agreed revisions and was signed into law on January 4, 2025. See Public Law 118-234, codified at 54 U.S.C. 100905.
In passing the bill, the House and Senate sponsors explained that all parties had agreed to a wide range of revisions to the EXPLORE Act in a non-binding “Four Corners Agreement” that the new House and Senate could adopt in the current session. NANPA and ASMP, along with NPPA and PPA are now again working to get several key FILM Act fixes from the Four Corner Agreement in place.
FILM Act Bases Permitting on Impact, Not Commercial Usage
The FILM Act is a long overdue victory for low impact photographers, videographers, and small crews taking still photos, video, or recording audio on federal lands. Several elements are key:
- Filming, still photography, and audio recording are now all treated the same and permitting is based on impact, not whether the activity is in any way commercial. Individual photographers will no longer need to worry about using videos on social media or in any other “commercial” manner. And many small-scale documentary filmmakers and film crews can now operate without the need to obtain sometimes burdensome and expensive film permits.
- In most cases, permits and fees are not required for filming or still photography activities (i.e. the taking involve eight or fewer individuals that otherwise adhere to park rules applicable to all visitors. The FILM Act requires that agencies eventually establish an automated notice system for activities involving 6-8 people to simply let the park know about the group’s presence.
- Regardless of the number of individuals involved, permits are required for any filming or still photography activities which
- impede or intrude on the experiences of others.
- disturb or negatively impact a natural cultural resource or an environmental or scenic value.
- require special access to a closed area.
- use “staging equipment” other than handheld equipment (tripod, monopod, lighting equipment).
- require exclusive use of a site.
- are conducted in a “localized area that receives a very high volume of visitation” (discussed further below).
- Permits are not required to photograph an event that has already been authorized in writing by the park (e.g. wedding, sporting event, demonstration, etc.).
- When a permit is required, administrative costs may be recovered and fees that provide a “fair return” to the United States may be assessed based on the length of filming, the size of the film crew, the amount of equipment used, etc.
- Permits can be requested even where not required, such as for a small crew or production that needs certainty or to satisfy the requirements of an insurance carrier.
The National Park Service (https://home.nps.gov/aboutus/news/film-and-photo-permits.htm?) and BLM (https://www.blm.gov/programs/lands-and-realty/leases-and-permits/filming-on-public-lands/film-permits) have issued temporary guidance and other federals agencies will likely do so as well. All agencies should eventually issue a notice of proposed rulemaking (NPRM) seeking comments on proposed regulations to permanently implement the FILM Act and NANPA and ASMP will offer extensive comments at that time. As the next section details, certain aspects of the FILM Act are troublesome.
Troublesome FILM Act Provisions
While the FILM Act is massive improvement, several of its provisions are potentially problematic and NANPA and ASMP are working to get them fixed. For example:
- Remove Criminal Penalties. Under current law, failure to get a permit can potentially result in criminal penalties. We believe this is unwarranted and that civil penalties and fines are more appropriate. The Four Corners Agreement would have removed the possibility of criminal penalties, and we will continue to push for its removal.
- Remove “Localized Area” Provision. The FILM act as passed included one extremely broad and ambiguous provision under which a permit may arguably be required for a “filming or still photography activity in a localized area that receives a very high volume of visitation.” 54 U.S.C. § 100905(a)(5)B). We have urgently pushed back against this provision as it is overly broad, ambiguous, and a vehicle for arbitrary application against photographers simply because they are carrying a camera in a crowded location. There is no notice requirement to ensure that a photographer knows a permit might be required, nor is there any requirement that such location even be crowded at the time the photographer is there. It was removed in the Four Corners Agreement and we hope to get it amended out of the FILM Act. The National Park Service does not even mention the requirement in their recent guidance, perhaps recognizing the inherently ambiguous nature of the provision. https://home.nps.gov/aboutus/news/film-and-photo-permits.htm?
- Clarify Application to Wilderness Area. Like the law it replaces, the FILM Act is intended to apply to all federal lands managed by the Department of Interior and the Department of Agriculture, including the 111 million acres of federal lands designated as a “Wilderness Area.” Unfortunately, the FILM Act contains a vaguely worded subsection stating that “no provision of this subsection is intended to or shall be construed to conflict with the provisions of the Wilderness Act of 1964.” The intent was to simply say that photographers must otherwise comply with the Wilderness Act when photographing in a designated Wilderness Area. The phrasing and placement of this provision is odd and unnecessary. We do not want a federal agency to wrongly interpret this subsection as allowing or requiring them to require permits for “commercial” photography in wilderness areas they manage. The Four Corners Agreement took the provision out entirely to clarify the issue and we are continuing to push for its removal by amendment.
- Define “Individuals.” The Film Act’s use of an eight individual threshold could lead to unintended results. For example, 10 individual photographers working in separate parts of the same park on a “Day in the Life” project should not need a permit, whereas ten individuals working in a small area might cause enough impact and disturbance to justify a permit. We have pushed to define the term ‘individual t to ensure that it only applies to situations where there is an actual impact on a small area of a park by a team or crew of photographers , models and others working together in a particular location.
- Clarify Definition of “Staging Equipment.” The FILM act requires a permit for bulky and heavy “staging equipment” but excludes low impact, hand carriable equipment like tripods, monopods, and light stands from the definition. This result is consistent with federal regulations and prior practice under PL 106-206. The section is phrased in a somewhat odd way, however, and NANPA and ASMP are working to get the provision defined more clearly.
- Models, Sets and Props. As passed, the FILM Act does not explicitly mention the use of models, sets, or props as an automatic trigger for a permit — in many instances, the use of a model or prop has no additional impact on the land or park resources and thus should not require a permit. An example would be photographing a person hiking on an open trail with a backpack as an advertisement for that backpack. Under the intent of the FILM Act, no permit should be required. The BLM’s early guidance requires a permit for most use of models, props or sets regardless of how minimal the actual impact. We will certainly be pushing back on that interpretation. https://www.blm.gov/programs/lands-and-realty/leases-and-permits/filming-on-public-lands/film-permits.
What About Photo Tours and Workshops on Federal Lands?
One common question after passage of the FILM Act is whether it means that commercial photo tour and workshop leaders still need to get a permit for tours or workshops on federal land. Although tour and workshop leaders would love that result, the answer is unfortunately no. Photo tours and workshops still need to obtain a separate permit (e.g. a Commercial Use Authorization or Special Recreation Permit) and the FILM Act does not change that requirement. In National Parks, for example, a Commercial Use Authorization (CUA) is required because paying clients are being guided within the park or natural area. The tour or workshop is thus treated like any other guide service. That the purpose of the workshop is to photograph is irrelevant.
Are Photo Permits Still Required for Commercial Photography on State Lands?
While the FILM Act is a massive improvement for photographers who take stills or video on federal lands, state laws and regulations regarding still photography or filming on state owned public lands are a confusing mess. Many state land managers reasonably require a permit for photography and filming activities that will impact park resources, require special access, close areas, disrupt park visitors, etc. Unfortunately, some states also appear to require a permit (and even liability insurance) for any “commercial” usage, including by individual photographers who are simply photographing landscapes and wildlife in the park.
NANPA is looking into the issue and how to persuade states to follow the federal example with the FILM. Act. To help understand these problems, NANPA is seeking examples and stories from photographers about their experience with state permitting requirements.
Advice to Photographers
The FILM Act will immediately benefit solo and small-scale photographers, videographers and filmmakers working on most federal lands. Whether their works might ever be used commercially in some way is no longer relevant to the permit inquiry and the focus is solely based on their impact to the park and park resources. For activities whose impact might trigger a permit, the best practice is to check in with local park authorities. As noted above, we hope to improve the FILM Act and will weigh in when the federal agencies seek to formalize regulations regarding the FILM Act. Until then, we are watching carefully for troublesome or unexpected interpretations of permit requirements and welcome photographer feedback and experiences.
Hopefully all states will adopt an approach that mirrors the FILM Act but until then ,the best advice is to check with state agencies about permitting requirements for any type of filming or photography that might be “commercial” in nature.
SIDEBAR: Can we set up a comment form for harvesting comments on permitting issues? That way the link can be sent around and the comments loaded to a spreadsheet.
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