By: Paul Fraidenburgh, Esq.
MovieMaker, August 13, 2014
There is something stirring in the skies, and it’s about to turn the independent filmmaking world upside down. With this year’s arrival of accessible, affordable, and—most importantly—legal unmanned aircraft systems (UAS, or “drones”), aerial cinematography is no longer out of reach for small-scale independent moviemakers. Recent shifts in the technological and regulatory circumstances surrounding small UAS may soon disrupt the filmmaking landscape.
Earlier this summer, after extensive back-and-forth with the Federal Aviation Administration, several cinematographers filed petitions for regulatory exemption to operate small UAS (55 lbs and less) mounted with cameras. It now appears highly likely that the FAA will approve the first of these petitions, following a final review of public comments that concluded last month. The petitions were filed pursuant to Section 333 of the FAA Modernization and Reform Act of 2012, which outlines a procedure for expedited authorization for commercial operations using small UAS.
The key here is recognizing the difference between “commercial” operations and “recreational” operations. According to the FAA’s recently published “Interpretation of the Special Rule for Model Aircraft,” unless you intend to operate your UAS purely for hobby or recreational purposes, you must obtain an FAA exemption to conduct commercial operations.
While that sounds like bad news to some, it is actually great news for independent filmmakers: Section 333 may serve as the great equalizer. By providing a simple and straightforward mechanism for obtaining approval of commercial drone operations, Congress and the FAA have put independent filmmakers on a level playing field with large motion picture companies when it comes to aerial cinematography. With new models of affordable and reliable UAS on the market this year, the technological barriers to entry have already evaporated, and with the FAA finally taking Section 333 seriously, the legal barriers just became far less intimidating.
The importance of Section 333 has become increasingly clear over the last several weeks. The Office of Inspector General’s June 26, 2014 Audit Report to the Department of Transportation concluded that the “FAA faces significant barriers” to safely integrating unmanned aircraft systems into the national airspace system on time to meet the FAA’s goal of September 2015. The Audit Report notes that the “FAA’s delays are due to unresolved technological, regulatory, and privacy issues….” In other words, it will be a very long time before we see a comprehensive set of regulations for commercial UAS operations.
The delay has broad implications for the UAS industry and for independent filmmakers. First, the delay means Section 333 will remain the holy grail for UAS operators who plan to conduct commercial operations in the foreseeable future. As the sole mechanism by which any person or business can legally use commercial drones in the United States, the importance of Section 333 cannot be overstated.
Second, since the FAA considers petitions on a first come, first served basis, the delay means independent filmmakers can position themselves advantageously by seeking FAA approval before the floodgates open. Being amongst the first to conduct domestic UAS filming operations may allow indies to shoot footage that rivals the studios, who have the resources to conduct UAS filming overseas.
Nimble artists need nimble technology. The increasing viability of drone photography will allow independent moviemakers to get a bird’s eye view of the next generation of their craft.