Last spring, I woke early to start a long day’s hike to the bottom of the Grand Canyon on the south rim’s Bright Angel trail. Just a few switchbacks down from the historic Kolb brothers’ studio (famous in their own right as filmmakers), my eye caught subtle but deliberate movement in the pre-dawn light. A desert bighorn sheep ram was picking its way down the sheer rock faces not a dozen yards from me.
I stopped and carefully produced my iPhone to shoot a video of the rare beast. In it, you can hear the crunch of sandstone under his hooves and marvel at his casual balancing act on the near-vertical slopes. Backlit in the golden hour, the video looked great, too.
“That is going on Instagram,” I told myself as he disappeared over a nearby ledge.
This scenario plays out countless times in endless varieties of ways every day across American public lands. The beauties—both intimate and grand in scale—of National Parks, National Forests, and other wild places inspire us to grab a phone, an action camera, or a DSLR and hit record. We enthusiastically share those millions of videos far and wide on social media and film platforms.
What I did not know, and I’m willing to bet you didn’t either, is that I may have technically broken a serious federal law in posting that ten-second film from Grand Canyon National Park on Instagram. It could have put me in jeopardy of criminal prosecution, resulting in huge fines and even up to six months in prison.
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The law in question is Title 43, Subpart A, Part 5.12 of the United States Code, which covers areas “administered by the National Park Service, the Bureau of Land Management, and the U.S. Fish and Wildlife Service.” It sets out the permitting and fee requirements for all kinds of commercial filming on public lands administered by the Department of the Interior (there is a similar code pertaining to United States Forest Service lands, which fall under the management of the Department of Agriculture).
The way the Department of the Interior currently interprets this federal code, even an individual partaking in low-impact filming using a small camera on a tripod or a phone could be considered commercial filming. And doing so without a permit is not a protected constitutional First Amendment activity. Furthermore, it is punishable not only with fines but also by up to six months in prison. Yes, up to six months in jail, and you would have a criminal conviction on your record to follow you around the rest of your life.
The law’s policy directive has been litigated in federal court (most notably in Price v Barr in 2019). Still, the Department of Interior so far has won its case in pursuing an aggressive interpretation of the code. We have insight into that interpretation in a revised policy issued in October 2022 by the National Park Service which reads, in part:
Federal law requires a permit for all commercial filming, no matter the size of the crew or the type of equipment. 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. The primary focus of the NPS, however, is on commercial filming that has the potential to impact park resources and visitors beyond what occurs from normal visitor use of park areas. Examples of this type of filming are productions that use substantial equipment such as sets and lighting, productions with crews that exceed 5 people, and filming in closed areas, wilderness areas, or locations that would create conflicts with other visitors or harm sensitive resources.
All filmers, no matter the size, must comply with all rules that apply in park areas, just like other visitors.
The upshot is that video captured with any device, even a phone, on federally managed public land such as National Parks, Wildlife Refuges, Bureau of Land Management lands, or National Forests and then shared on social media platforms could be considered commercial filming depending on whom you ask at which agency. Technically, all such filming requires a permit, which can cost between $75 and $300 at a minimum each time you reach for your camera.
If you want to ensure that your filming activity is legal, you should inquire with the permitting office for the managing agency of the federal land you plan to film on each time before you start to roll tape. Unfortunately, the existing permitting process takes outsize time and effort relative to the types of videos most people are sharing on outlets such as YouTube or Instagram.
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What does this all mean for those of us who not only monetize our video content through social media but also casual videographers like me who just want to share 10 seconds of zen with a bighorn sheep at dawn in the Grand Canyon?
Realistically, these federal agencies don’t have the resources to enforce this policy on a large scale. Can you imagine rangers checking permits and arresting hundreds of people at a time while they’re filming an eruption of Old Faithful geyser in Yellowstone? Or agency staff pouring through millions of hours of YouTube or Instagram-posted content to verify it was obtained with a valid permit? However, the law demands attention as the landscape of video on social media platforms has evolved and continues to evolve rapidly, and the legal liabilities in play are not insignificant.
Diane Renkin / NPS Photo
My co-author on this article, Rob Cook, who has done extensive research and leg-work on this issue after becoming interested in it last year, writes, “There is a possible legislative improvement to this situation currently working its way through Congress this session, but while it may be an improvement I don’t know that I would call it a complete fix, and this issue will still exist within large areas of public land.”
The bill that is currently under consideration by the U.S. Senate Committee on Energy and Natural Resources is America’s Outdoor Recreation Act of 2023 (AORA). It is bi-partisan legislation sponsored by John Barrasso (R-WY) and Joe Manchin (D-WV), and Section 401 of the bill takes the film question into consideration. We would encourage everyone to read the bill for themselves, but at a high level, the intent is to remove the need for a permit in some commercial filming scenarios, no matter the platform used to distribute the film, including social media.
This is an improvement, given that the current law requires seeking a permit regardless of the commercial filming scenario. However, the bill is imperfect, leaving some holes and less than clear interpretation in some areas. Rob has been working closely with Todd Chamberlin, aka “Park Junkie” on YouTube, to address some of these questions and concerns with the Committee before the bill becomes law.
Rob writes again, “However, our voices alone are not enough. A handful of us asking for issues to be addressed before this bill becomes law is not a lot of motivation for members of Congress to further refine the language. But 10,000, 50,000, or 100,000 people asking increases the chances of motivating them to address lingering issues before they become law.”
If you choose to reach out to your representatives, you can do that in your own words or use the templates Todd Chamberlin has placed on his website. Members of the Senate Committee on Energy and Natural Resources, along with their contact information, can be found here. The Committee will meet again soon with the goal of moving the bill out of committee by the end of April 2023.
In addition, if you would like to read more in-depth on this critical issue, Rob has compiled an extensive White Paper that details the court cases involved, as well as the more complex legal and policy issues. You can contact Rob via his Instagram page @overland_v1.0 or his YouTube channel.
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