Above the Law: How Drone Laws Around the World Are Affecting Production
Like most industry ‘trends’, drones have had a bit of an ungainly settling-in phase. Attempts to use drones in advertising have, more often than not, been awkward (although not as awkward as the phrase ‘dronevertising’). In June, Australian festival Creative Fuel roped in the likes of Ben Coulson, Ant Keogh and Steve Back to parody the pointless and forced use of drone technology with “The World's First Crowd Sourced 3D-Printed QR Code Live Streamed Via Go Pro To A Smart Phone Or Tablet Device Drone Delivery Ticket System Project”.
On the production side of the industry, however, drones have been making far more progress. A fraction of the price of helicopters, they’ve brought down the cost of low altitude aerial shots. For action directors like Paul WS Anderson, they’re a nifty way to get the camera right into the thick of a car chase without risking life and limb. Other directors suggest that they’re a more flexible alternative to the Steadicam for smooth, moving shots. They’re not perfect by any means – just ask anyone who’s had to operate a camera drone in anything above a light breeze – and for now filmmakers are limited to shooting with fixed lenses and relatively light cameras like the RED Epic.
In production drones have moved from novelty to legitimate part of the filmmaking arsenal, but they’re yet to become truly commonplace. The fuzzy legal status of UAVs (unmanned aerial vehicles) has created a looming question mark that has made commercial filmmakers think twice taking to the skies. In many countries legislators have been slow to keep up with technological change, while other countries prefer more of a Mad Max lawlessness. Other governments have engaged in frustrating flip-flops and U-turns. It’s an understandably controversial issue; there are huge implications for civil liberties and privacy as well as safety concerns about flying drones in built-up urban areas. Moreover, in many people’s minds the word ‘drones’ is inseparably linked to the word ‘military’ – although the lightweight rotocopters typically used by filmmakers are dramatically different from the Predator stealth drones deployed in war zones. Nonetheless they are an undeniably useful and cost-efficient tool, and arguably privacy issues don’t really apply when using them in a closed-off film set. So if you’re thinking of using a drone in your next shoot, it’s worth doing a bit of research to find out what the situation is in your chosen location.
(NB. Below is not intended as legal advice and is instead a ‘rough guide’. What’s more, drone laws in different countries have proven extremely changeable over the past few years.)
The land of the free? Not if you want to use drones to shoot commercials. “Drones are still not legal in our industry anywhere in the US. They are only legal for hobbyists,” explain the team at Park Pictures. According to the Federal Aviation Authority, flying a drone for commercial purposes in the States is illegal – sucks for film production, sucks for Amazon – but things are set to change. Congress has set a September 2015 deadline for the Federal Aviation Authority (FAA) to issue regulations for commercial drones. Even when these laws come into place, it looks like operators will face heavy restrictions, medical tests and licenses.
However, delve a little deeper and you soon find that things are not so straightforward – the FAA’s authority on the matter was severely undermined earlier this year. In 2011 filmmaker Raphael Pirker was fined $10,000 for using a drone to capture shots of the University of Virginia for PR firms Lewis Communications. In March a federal judge overturned the ruling; while the FAA has said frequently that commercial drones are categorically illegal, judge Patrick Geraghty found that there were no specific laws preventing commercial UAVs and argued that the FAA’s authority over drones and model aircraft was questionable. In any case it’s a political hot potato, and the FAA are themselves challenging Judge Geraghty’s ruling… so unless you fancy an expensive, three year lawsuit it’s advisable to hang back on any plans to shoot with a drone in the USA until at least Autumn 2015 (although when any regulations might actually come into force is anyone’s guess).
Oh and to make matters even more complicated, individual states are drawing up their own laws about how drones can and can’t be used – though these mainly relate to law enforcement agencies and restrictions on drones for use in surveillance.
According to Lorenzo Benedick from Vagabond Films, the restrictions have had a negative impact on projects that his company has worked on and he believes that if the FAA can integrate commercial drones into US airspace then it will make a huge difference for the US production industry. “We had to kill a beautiful aerial shot for a client out in Pennsylvania, even though we were only shooting over and above their headquarters,” he says.
One potential alternative for those hoping to get their drone on in North America is to head across the border into Canada, where commercial drones have been permitted since 1996. Operators need a licence called an Air Operator Certificate that specifically permits the use of UAVs. What’s more, every commercial drone flight requires a Special Flight Operations Certificate (SFOC) that outlines the geographic area in which the drone is permitted to fly. It takes at least 20 working days for an SFOC to be granted, so producers need to bear that in mind. Consent is also required for commercial images taken of private property.
South Africa has long been a popular destination for commercial shoots but recent changes in the law have been making things difficult for anyone hoping to use drones. In May, flying camera drones were banned and the South African Civil Aviation Authority (SACAA) ceased issuing permits. The controversial move was in response to the lack of regulation governing the use of UAVs – the SACAA feels it needs more time to investigate and understand how camera drones are used in order to draw up appropriate rules.
However the blanket ban has been frustrating for local crews who are experienced with using drones. Even for those willing to risk breaking the law, insurance companies will not provide cover for shoots using drones and drone operators cannot obtain insurance, either.
Alison Ellard is the EP at production service company Wink. Her most recent experience working with drones was on the Nokia ‘GO! In the Fast Lane’ spot through JWT London (before the moratorium). A remote control helicopter was used to capture aerial tracking shots in narrow streets. She hopes that the South African authorities will be able to find a temporary compromise that will allow the Wink team, along with other production service companies, to get back to using a tool that she says is ‘cost effective’ and allows productions to get close to the action. “The South African Unmanned Aerial Vehicle Association (SAUAV) is in dialogue with the CAA and we are hoping that interim regulations can be put in place which would allow drone filming to continue. We are not anticipating seeing any change in the situation until at least March 2015,” she explains.
In Australia, production teams hoping to shoot with drones need to factor in a bit of extra time in order to obtain the relevant permissions and may find themselves landed with additional paperwork.
Oliver Lawrance at Photoplay Films has used drones for several commercial shoots and has acquired a fairly in depth understanding of the legal situation in Australia.
“The Australian laws surrounding drone use come under two different areas. One is for hobby-users, and the other is when the drones are deemed aircraft. There’s a big grey area between them and the designation as aircraft is really about the operator rather than the drone itself. If the operator is a professional, licensed under the aviation rules, then the drone is considered an aircraft. You then need to clear the flying route with the aviation authority, and if you’re in a built-up city you need to leave two to three weeks to organise. If you’re in the country, or an open area within the city, then filming permission is very straightforward.
“The other main Australian law relates to how close you can fly to people for safety reasons. I believe the current clearance range is 20m for drones, whilst specialist drone operators can get an exemption to decrease this limit to 5m. Also drones are not able to fly at night legally, so night shots need to be filmed at magic hour,” he explains.
The extra paperwork is worth it for Lawrance as UAVs can achieve the kinds of shots that would ordinarily require a lot of heavy lifting in post-production.
For Lawrance, the most memorable drone project Photoplay has been involved with was a Ford Territory spot directed by Scott Otto Anderson that was shot entirely on an Octocopter-mounted Red Epic camera. The drone allowed the creation of a seamless 360-degree movement. “The drone allowed us to create circular craning shots in places we could not build those camera rigs normally, as well as matching the same camera moves with both stationary and moving vehicles. We had to do a lot of testing and preparation with the drone to achieve the desired shot. Without the drone I’m not sure we could have achieved it,” he says.
Drones have become increasingly popular in India with filmmakers, thanks in part to the relatively relaxed views of the authorities. Keep them below 300 feet and away from security establishments and airports and you’re pretty much good to go. Technically speaking, commercial drones are not allowed but many filmmakers are interpreting that to mean deliveries and such.
According to Bang Bang Films founder and MD Roopak Saluja the biggest thing holding India back from a full-on drone explosion is the skill level of local operators. That aside, he has noticed that productions using drones have become increasingly frequent over the past year-and-a-half.
“We’ve used drones at least half a dozen times over the past year – most often for car and bike commercials, but also for real estate,” he says. “The best thing about them is the variety they can provide. One of my favourite shots we got with a drone was for a Fiat commercial with Top Gear director, Nigel Simpkiss, where we made a drone practically skim the surface of a lake to get a really low-flying, sweeping movement towards a sunset. I can’t think of any other way we could have achieved something of the sort.”
The UK may be renowned as the home of health ‘n’ safety culture and red tape, but when it comes to drones the authorities have taken a surprisingly measured approach.
As APA Chief Executive Steve Davies explains, there is no specific set of laws about filming with drones. “They are governed by Civil Aviation Authority (CAA) regulations in respect of how and where they are flown - you can't fly them within 150 metres of a congested area or large crowd, for example, meaning that flying them in a city or town is out. Permission is needed to fly in some airspace and direct visual contact must be maintained. The operator must be able to see it themselves (not through a monitor) and is responsible for the safety and any damage or injury that results. Plus permission from the CAA and insurance are required.
“Not doing any of that is against the law and can result in a conviction and fine. Outside of that there are no separate filming or other laws that relate to drones. But general laws on privacy, nuisance, harassment/stalking that apply to human interaction, generally, also apply to drones.”
The production community in Spain has been on a bit of a wild ride, so to speak, as far as drones are concerned. In April this year the Spanish government announced a ban on commercial drones which could have seen production and production service companies faced with the same awkward stalemate as their counterparts in South Africa. At the time, drone enthusiasts and filmmakers reacted with outrage. After all, if commercial shoots and Hollywood productions decided to relocate, the potential effect on employment in a country that’s only now starting to bounce back from ‘La Crises’ could have been unthinkable.
However, Spain’s State Agency For Air Safety (AESA) has relented, as Blur Productions founder Mario Forniés explains. “On the laws to shoot with drones, there is some confusion in Spain. First they talked about a ban, then you had to obtain the same permissions as shooting with a helicopter and now they have just said you can shoot with them but not in urban areas. Not being able to shoot in these areas does limit its use… It would be fantastic to be able to get a shot following a person down the street, for example.”
For a production company like Blur, which has used drones for many car and action-heavy spots, the relaxation of the ban has proved to be a huge relief. Forniés acknowledges the many difficulties that drones entail in their current state, such as weight limitations which prevent using heavy camera equipment and anamorphic lenses, and also the difficulties in finding insurers willing to cover drones. Despite all this, he still believes that drones have revolutionised the industry.
“Drones have been a brutal advancement to advertising and film production – they have made everything possible. It used to be very complex to film the kind of shots drones can now achieve. In the past we were faced with many handicaps such as having to obtain permits, fuel, heliports. With drones you can now shoot with cameras such as the Epic in high quality, with amazing stability, quickly with little preparation time and for very reasonable prices. They don’t emit much noise and can change direction very quickly - you could shoot close to animals, for example, without them being scared away by the noise. It’s one of the greatest advances that technology has brought to our profession in the last few years.”
In Greece, camera drones are regulated with a fairly light touch, the main rule being that they cannot be flown over populated areas.
For Green Olive Films’ Maria Kopanou, it’s a common sense restriction that can be easily worked around – for shooting a beach scene it might be easier and less dangerous to fly the drone over the sea rather than over a busy beach.
As with many other countries, the biggest challenge comes from the weather, not the authorities. “The main issue with the drones, especially here in Greece, is the wind issue which changes constantly. You cannot rely on a two or three day forecast to make a decision. Also you have to be very wary of wind gusts. It is important that the company who have the drones and operate them are experienced and cautious rather than succumbing to pressure to achieve the shot,” she advises.
Another issue is insurance; local insurance companies won’t cover cameras or lenses mounted on drones for local production service companies, so it is usually the responsibility of the international production company to secure insurance.
Commercial drones have taken off in Germany in a big way. The usual commercial filming restrictions apply with regards to privacy, copyright (e.g. filming concerts and events) and shooting in busy urban areas. Every commercial UAV flight requires a licence and, unless a special permit has been obtained, the drones should be under 25kg. However, local authorities govern permits and different states have different requirements.
Production service network Vagabond Films works on productions all over Latin America (as well as Switzerland and the US) and has experience shooting with drones in Brazil and Chile.
Brazil, for example, is something of a drone free-for-all, making it easy for filmmakers to shoot whatever they like. “Brazil does not have any restrictions; so far we’ve just used drones in São Paulo over the city and in Rio de Janeiro over a Favela,” explains Vagabond’s Lorenzo Benedick.
There’s something of a historical precedent in Brazil – the military has been experimenting with drones since the 1980s and law enforcement has been using them to bust drug gangs and monitor crowds during the 2014 World Cup.
Argentina, meanwhile, is a bit of a trickier prospect as the government has simply folded drones into existing laws. “Buenos Aires has more restrictions and makes it difficult for producers to get permits since they are using an old law pertaining to fly helicopter,” says Benedick.
So far, Benedick doesn’t think that commercial drone laws factor into decisions for agencies and production companies scouting out locations to shoot in, but feels that that is likely to change in the future. “It's definitely a plus, not a condition as far as we know. But it will definitely change very quickly as the drone technology evolves.”