SEJ has urged the US Dept. of Agriculture to follow the law and ease current fees and restrictions on commercial photography that could make it harder for free-lance nature and news photographers to work at the National Arboretum in Washington, DC.
The case is important for the precedent it sets for freedom-to-photograph on a wide range of federal land categories - in fact, most lands administered by the Interior Dept. and Agriculture Dept., including National Parks, National Forests, Wildlife Refuges, and BLM open range.
SEJ submitted the formal comments Feb. 18, 2005, in response to a Federal Register notice from the USDA's Agricultural Research Service that it was updating the rules under which it administers the National Arboretum. Current rules, adopted in 1996, require commercial photographers and cinematographers to get permission and pay a fee before they can shoot at the Arboretum. The 446-acre facility is a popular tourist attraction when azaleas and apple trees blossom in the spring, and has provided a scenic backdrop for everything from weddings to Hollywood films.
Alerted by the SEJ 1st Amendment Task Force, SEJ joined the National Press Photographers Association, the American Society of Media Photographers, and the North American Nature Photography Association in objecting to the Arboretum rule as proposed.
The 1996 Farm Bill authorized USDA to charge fees for photography at the Arboretum, and USDA issued regulations implementing that law the same year. The 1996 rules required permission and fee for "commercial photography" and cinematography, but declared an intention not to restrict photography for personal use or "for news purposes." Those rules applied only to the Arboretum - but a patchwork of similar provisions applied to other federal land categories.
In practice, however, the line between commercial and news photography was not that easy to draw. A large portion of the nature photos seen in newspapers, magazines, broadcast, and online media are actually taken by free-lancers who spend time and money to shoot them even before they have identified a client to buy them or have any certainty of being paid. Photographers often sell them (if lucky) to "stock" photo services before they are ultimately licensed to news media or some other outlet.
That was why in 1999-2000 Congress passed another law, authored by Rep. Joel Hefley (R-CO), addressing this problem generically for most public lands administered by the Departments of Interior and Agriculture. The consensus then was that the permit-and-fee system was justified only when photography might conflict with the conservation mission of the agencies. Advertising shoots with lots of props and lights, or major movie projects with sound trucks, dollies, and cables, could damage precious plants and resources, interfere with public use, and require agencies to spend staff time supervising the work. Proponents of the bill argued that ordinary photographers - news, commercial, or amateur - should have the same right of access as the general public if they placed no greater burden on the resource than the general public does.
Public Law 106-206, passed May 26, 2000, prohibited the two departments from requiring permits or fees for still photography when it "takes place where members of the public are generally allowed." Fees and permits can only be required when photography "takes place at other locations where members of the public are generally not allowed, or where additional administrative costs are likely." The law authorized "reasonable" fees for "still photography that uses models or props which are not part of the site's natural or cultural resources or administrative facilities."
The rule-revision proposed for the Arboretum did not reflect this change in law. SEJ and the other groups argued that an updated regulation needs to reflect the updated law. SEJ also asked USDA to extend the public comment deadline for another 60 days past Feb. 18.
- Text of SEJ letter of Feb. 18, 2005, to Thomas S. Elias, Director, US National Arboretum.
- "Proposed Rule: National Arboretum," Agricultural Research Service, US Dept. of Agriculture, Federal Register, Dec. 20, 2004, pp.75880-75885.
- Text of PL 106-206.
- Testimony of Victor S. Perlman, Feb. 4, 1999, before the House Resources Subcommittee on National Parks and Public Lands.
- Relevant sections of 1996 Farm Bill: Public Law 104-127, Section 890; and Implementing Regulations: 7 CFR 500.