In previous articles in this series we’ve explored whether Ralph, a fictional commercial shooting ads on a variety of National Park Service lands, and George, a Las Vegas amateur photographer who wants to shoot a few pictures of his model girlfriend at Lake Mead need expensive permits to take their pictures. By this point we’ve reviewed the law and the regulations and know that Ralph does not need a permit, because taking commercial photos on Park Service land does not require a permit unless there are other factors that make him need one.
Then there’s George. Poor George, who only wants to take some facebook pictures with the lake in the background and has the misfortune to have Susie the model as a girlfriend. The current Park Service regulations say he doesn’t need a permit, the law can be interpreted either way, and yet the Park Service says he does need one. What to make of all this?
Our tentative conclusion that George does not need a permit is based on the current regulations at 36 CFR 5.5, which don’t require a permit for non-commercial still photography. One would think that would do it, but one would be wrong.
The Park Service holds the position that the current Regulations follow an earlier Secretarial memo issued by DOI Secretary Lujan in the early 1990s. “The primary consideration is that Public Law 106-206 is the main guidance on still photography permits. This law, which was passed in May of 2000 conflicted with the regulation found at 36 CFR 5.5 which means that the provisions of the law apply.” Or, put another way, never mind what the Regulations say, they are not effective because of the conflict with the statute.
Well, what about that statute? The “still photography” section, after all, appears as a subsection of “Commercial filming” in the law, so doesn’t that mean that it only applies to commercial shoots? No, the Park Service tells us:
“Public Law 106-206 does not require a permit based on the commercial nature of the still photography. The word commercial does not appear in that section at all. Whether a photograph is intended for commercial use or not is not a factor in requiring a permit. In fact our position is that most still photographers do not require a permit to shoot. A permit is not required unless the activity is using models, sets, or props, entering an area generally not open to the public or where the NPS would incur expenses to monitor the activity to protect park resources.”
It’s true, the “still photography” section does not include the word “commercial”, and the NPS is not persuaded by the fact that it appears in the “Commercial filming” section of the law.
As we have seen, normally rules are written as authorized by higher level regulations, but in this case, the existing Regulation, the NPS says, isn’t effective. So what to do?
What they did is publish, in 2006, a Management Policy to tell their park superintendents how to write the rules for still photography in the parks. Their Management Policy, which does not have the force of law, but which directs the lower level rule-writers on what to do, says:
“In accordance with Public Law 106-206, still photography (whether commercial or noncommercial) will not require a permit unless . . . it uses model(s) or prop(s) that are not a part of the location’s natural or cultural resources or administrative facilities . . . .”
So now poor George, who really only wants to make his girlfriend happy, seems to have an expensive problem after all. The National Park Service says he really does need a permit to shoot his model girlfriend. And unlike the USFS and BLM, they have not published (and don’t use anyone else’s) definition of “model” that would get him off the hook.
So does George really need that permit?
If he does, it’s because shooting a model on Park Service lands would be a violation of the law even in the absence of an implementing regulation, or because a rule made it a violation.
In the next article we will explore what the various National Park rules really are, and how they compare with the law and with National Park Service stated policy.
This article is part of a series explaining the requirements of the National Park Service for permits for photo shoots involving models. The next article in the series is at http://dampfang.com/modeling-in-las-vegas/photographing-models-on-federal-property-national-park-service-lands-part-six
The beginning of the series may be found at http://dampfang.com/modeling-in-las-vegas/photographing-models-on-federal-property-national-park-service-lands-3
1. http://Public Law 106-206/16 USC 16 Section 460 http://www.law.cornell.edu/uscode/html/uscode16/usc_sec_16_00000460—l006d.html
2. Emails with Lee Dickinson, Special Park Uses Program Manager, National Park Service