The Legal Consequences of Using Experimental Aircraft in Filming Productions or Movie Making – Is a DVD Electronic Capture of the Flight a “Movie”?

Hoff Law Group

309 W. Washington Street
Suite 700
Chicago, IL 60606
Tel. (312) 346-8111
Fax. (312) 853-3924
@HoffLawGroup

Share This Article

Share
Authors: Jeffrey F. Clement and John S. Hoff
Lawyer-Pilots Bar Association Journal
Dec-2013

Introduction

 The nature of what is a “motion picture” or “movie” has evolved greatly over the past century.  Electronic “capture” has largely replaced celluloid motion pictures.  Computers, iPads, and social media have reshaped productions that formerly appeared solely “at a theater near you.” 

For over a century, aircraft have been used in celluloid motion picture and television productions.  Today, such usage extends to other “new media” filming or electronic productions.  Additionally, high performance former military and “experimental” category aircraft are increasingly being utilized in filming operations as experimental aircraft are well known for their versatility, excitement and performance in achieving aerial footage and action.  This article focuses on the legal aspects of utilizing experimental category in filming productions under the Federal Aviation Regulations (FARs) (14 C.F.R. § 1.1, et seq.), with specific emphasis on the impact of the Internet and “new media” on the legality of such operations. 

The operating limitations for experimental category aircraft expressly permit operations for “motion picture, television, or similar productions.”  What constitutes a “similar production” is a bit ambiguous, and is often left to the interpretation of an NTSB Administrative Law Judge (ALJ).  To some of them, a “similar production” consists of what may be presented “at a theater near them,” and they are unaware of the developments of new media, Facebook, Twitter, YouTube or personal webcasts.  While millions saw Tom Cruise and his F-14 in the 1986 movie “Top Gun,” over 8 million viewers tuned into a live YouTube broadcast to see Felix Baumgartner step out of his space capsule, freefall, and then parachute to Earth.  Yet these viewers didn’t see it as a movie, and they didn’t watch at a movie theatre or even on their cable TV set. 

Can Individuals Be Filmed On Board an Experimental Aircraft During Flight? 

During aerial filming or electronic capture of operations, actors or reality TV participants (i.e., non-pilots) may be featured on board the aircraft during flight.  However, in the case of experimental aircraft, there are several legal wrinkles towards achieving such aerial shots of individuals. 

First, 14 C.F.R. §91.319 provides, in part:

a)      No person may operate an aircraft that has an experimental certificate

-          (2) carrying persons or property for compensation or hire.

Additionally, 14 C.F.R. §91.9(a) provides that “except as provided in paragraph (d) of this section, no person may operate a civil aircraft without complying with the operating limitations specified in the approved Airplane and Rotorcraft Flight Manual, markings, and placards, or as otherwise prescribed by the certificating authority of the country or registry.”  

In the case of experimental aircraft, the operating limitations reiterate that “no person MAY operate this aircraft for carrying persons or property for compensation or hire.”  Of course, the very purpose of making a movie or other media capture of the event is usually associated with making money.  However, elsewhere, the operating limitations provide that “No person may be carried in this aircraft … for motion picture, television, or similar productions, unless essential for the purpose of the flight.”  See FAA Order 8130.2G, Airworthiness Certification of Aircraft and Related Products (emphasis added).  If having a person be filmed aboard the flight is the very reason for the flight, isn’t their existence in being on board the aircraft “essential” to the purpose of the flight? 

Where does this leave a pilot, aircraft owner or aviation company who wants to use its experimental aircraft to film aerial shots or imagery of individuals on board the aircraft during flight?

First, such an operation would arguably be in violation of § 91.319(a) if the operations are being done “for compensation or hire” (like a “joyride”).  Because filming operations involving actors or reality show participants are, by their very nature, being performed for profit, such operations seemingly would be considered “for compensation or hire.” 

Second, because the operating limitations for experimental aircraft preclude the carriage of a person for compensation or hire, the media operation involving a money-making motivation would also be contrary to the “operating limitations” for the aircraft issued by the FAA.  Therefore, it arguably could be in violation of § 91.9(a).  Further, according to the FAA, because the operating limitations for an aircraft are considered “part of the aircraft’s airworthiness certificate,” the operator would be in violation of 49 U.S.C. § 44711(a)(1) as the operation would be deemed “in violation of a term of the certificate.”  See Legal Interpretation to Jeff Gordon (March 28, 2011).  It could also arguably render the aircraft unairworthy, thereby causing a violation of Parts 91.7 and 91.403 of the FARs. 

Is the Filming (or Media Capture) of Individuals On Board the Aircraft for the Purpose of Making a Movie or DVD the “Carriage of Persons for Compensation or Hire”? 

That being said, would an “actor” (professional or otherwise) or other filming participant really be considered a “person” for purposes of § 91.319(a)(2)?  The FAA has consistently taken the position that an operation for compensation or hire is prohibited under § 91.319(a)(2) when it involves the transportation by air of persons or property of another, but curiously not when it involves transportation of the operator’s own employees or property. See Legal Interpretation of Bob Shaw (Feb. 4, 2008).  Thus, a camera mounted to an experimental aircraft for the purpose of taking interior or exterior aerial shots would not violate § 91.319(a)(2) because the camera is presumably the operator’s own property, rather than the property of another.  See Legal Interpretation to Gregory S. Winton, (February 14, 2013) (data-gathering equipment that is attached to the aircraft is considered to be a fixture, instead of property or cargo of another that is transported from place to place). 

The issue is more complex in the case of carrying actors or other filming participants.  The pilot (or aerial filming company) may not personally employ the actor, and could be charging a separate movie production company for their services.  On the other hand, the pilot (or aerial filming company) could be engaged in a “common purpose” or joint venture with the movie production company, with the movie production company ultimately being provided with the aerial footage. 

Also, flights are not considered for “compensation or hire” if the operator is carrying only his own employees “who are necessary for the purpose of the flight.”  See Legal Interpretation of Bob Shaw (Feb. 4, 2008).  Similarly, as it relates to movie making, an experimental aircraft’s operation limitations provide that “no person MAY be carried in this aircraft … for motion picture, television, or similar productions unless essential for the purposes of the flight.”  (emphasis added).  Seemingly, this would not be limited to required crew members who might be necessary just for the actual operation of the flight.  Again, the “purpose” of the flight should not be confused with being necessary for the actual “functioning” of the subject aircraft (as a “required crew member” under Part 61). 

Thus, if the operator is carrying its own persons or employees on board (like a camera operator or actor) that are “essential for the purposes of the flight,” and if the purpose of the flight is filming a “motion picture, television, or similar production,” the operator would presumably be operating in compliance with the experimental aircraft’s operating limitations and any “Motion Picture Waiver.”  Also, because the FAA seems to have adopted a “necessary for the purpose of flight” standard to determine whether the carriage of a person is subject to § 91.319(a)(2), such an operation would seemingly not be in violation of § 91.319(a)(2), either. 

After all, in aerial filming operations, an actor or cameraman should be considered “essential for the purposes of the flight.”  That being said, as it relates to non-technical or non-operational crew (e.g. actors), given today’s high-tech world of blue screen filming and CGI, it is increasingly difficult to make the case that it is absolutely “necessary” for an actor to actually be physically present in and aboard the aircraft in order to achieve a “shot.”  Even more problematic is “reality show” formats, whereby ordinary individuals might be filmed inside an experimental aircraft while in flight.  Certainly, their physical presence in the aircraft would be “necessary” to achieving a film or media capture of their candid reactions to the flight experience.  However, allowing reality show contestants to be flown in an experimental aircraft is anything but “realist” because, in real life, ordinary persons are not permitted or allowed to be carried in such experimental category aircraft. 

        Unfortunately, there is little guidance on this question.  As discussed in more detail below, FAA Legal Interpretations have skirted providing any definitive guidance on the difficult issue of whether and when an individual being filmed on board a flight is “essential for the purposes of the flight.”  See Legal Interpretation to Jeff Gordon (March 28, 2011). 

Does an FAA Certificate of Waiver/Movie Manual Clarify Matters?

Many experimental aircraft owners and aerial filming companies operate under an FAA issued Certificate of Waiver or Authorization from the FAA Flight Standards District Office (FSDO).  This will typically “waive” certain limited regulations for motion picture or television filming, such as 91.119(b)(b) (minimum safe altitudes), 91.515 (flight altitude) or 91.303(e) (aerobatic flight).  The operator will also be issued an FAA approved Motion Picture and Television Operations Manual.   These documents are, in essence, their Operation Specifications.

However, most FAA Approved Movie Manuals provide that the aircraft used “may be certificated in any category, including experimental, provided the requirements of 91.313, 91.319 and 91.203 are met.”  (emphasis added).  Thus, the application of Part 91.319(a) is preserved, even with operations involving motion pictures.  Therefore, the Certificate of Waiver cannot include a waiver of Part 91.319(a).  Indeed, Part 91.319(a) cannot be waived, as it is not included the list of rules subject to being waived.  14 CFR § 91.905.  

The aerial filming operator/pilot may also point to the fact that it received a Certificate of Waiver and Authorization for Part 91.119(c), thereby waiving the requirement that the aircraft not be operated closer than 500 feet from “any person.”  They will argue that, if the aircraft can be operated closer than 500 feet from a person, this would include a person being physically aboard the aircraft.  Also, the Movie Manual will state that “91.119(c) will only be waived with respect to those participating persons … directly involved in the performance of the actual filming,” which would presumably include the ostensible “actor” being filmed.  Additionally, the Movie Manual typically defines “participating person” as an “actor, film or television crew member involved in a film or television production contemplated to be released for public viewing or distribution via Theatrical, DVD, or other similar generally accepted venue.”  Clearly, an actor or other filming participant would be considered a “participating person” under the Movie Manual. 

Regardless, relying on this waiver language is somewhat problematic and risky for the operator.  First, the waiver (and definition of participating person) only relates to Part 91.119(c), not Part 91.319(a).  While Part 91.119(c) speaks of distances from persons, it does not expressly deal with the “carriage of persons” aboard the aircraft.  Also, it is dangerous to rely on a waiver of one regulation to “imply” a waiver of another regulation, especially when that regulation [Part 91.319(a)] cannot be waived by the FAA. 

Therefore, it remains unresolved whether there are any circumstances where persons can be carried aboard an experimental aircraft during flight for the purpose of being filmed (to include any form of electronic media capture).  It seems logical that a professional or amateur actor or reality show participant would be considered “essential for the purpose” of a flight involving a “motion picture, television, or similar production,” and thus the operation would be in compliance with the aircraft’s operating limitations as well as Part 91.319(a).  However, the FAA has shied away from expressly endorsing such an interpretation, and it is left largely to the whim and mood of an NTSB ALJ.  Ultimately, additional regulation and/or interpretation from the FAA is badly needed to provide some predictability and to resolve these ambiguities.  This would reduce the down-side of being subject to an FAA Enforcement Action or an arbitrary ALJ. 

What Filming Productions will the FAA Recognize as Legitimate?

Assuming that the carriage of actors or other participants being filmed on an experimental aircraft is permitted under any circumstances, the next question is what qualifies as a “motion picture, television or similar production” under the aircraft’s operating limitations, or, as defined in the Movie Manual, a “film or television production contemplated to be released for public viewing or distribution via Theatrical, DVD, or other similar generally accepted venue.”

It is not clear exactly what was contemplated by the term “public viewing or distribution.”  Does compelling your friends, co-workers or neighbors to watch your contortions in the back seat of an L-39 or P-51 constitute a “public viewing?”  Would it matter if a Tom Cruise was filmed so that millions would hopefully watch the footage, or if an individual simply wanted a DVD of himself or herself in a P-51 that only he or her would later watch and enjoy in private at home?  Where does the FAA draw the line?  Would it really matter whether (or not) it was seen by millions, posted on YouTube where hundreds or thousands might see it, or just a personal DVD seen by “friends or family” that could be counted on one hand? 

Keep in mind the ultimate decision will be made by the NTSB ALJ, who will make this determination based on his or her own experiences, which may not include the “new media” and the like.  These ALJs may be more comfortable and familiar with a 1960s concept of exactly what constitutes a “movie” or “motion picture.”  If an edited, music-mixed DVD of the flight that is given to the person is deemed a “personal souvenir,” is it verboten? On the other hand, if the recipient chooses to “post” it on YouTube, where it could be viewed by anywhere from one person to millions of person, is the aerial media capture any more (or less) of a “film” depending purely on how many people view it?  Is the pilot “at risk” of an FAA Enforcement Action if the subject of the media capture decides to just keeps the DVD exclusively for himself or herself?  Is the flight and media capture then just an “excuse” to justifying the carriage of a person on a “joyride,” with the DVD a nice (but expensive) takeaway souvenir? 

The FAA, in its Legal Interpretation to Jeff Gordon (March 28, 2011), was asked to determine whether the filming of a member of the public in an experimental aircraft during flight and providing that person with an edited and mixed DVD of the event constituted a legitimate “motion picture, television or similar production” whereby the person was deemed “essential for the purpose of the flight.” The FAA concluded it did not.  In its Interpretation, the FAA stated:

The agency does not considering carrying a person on an aircraft while marking a DVD of that person operating the controls of the aircraft during the flight to constitute carrying that person for a “motion picture, television, or similar production” when the DVD is intended primarily for that individual’s personal use.  Accordingly, the agency need not reach a determination as to whether the carriage of the person is essential for the purpose of the flight.

So, if the DVD is not intended for anything substantially beyond the individual’s personal use, then it is not permissible.  On the other hand, if the DVD provided to the individual is intended to be distributed by them in the new media and is seen by millions, would it then be permissible?  Ultimately, the risk of what the recipient does or does not do is then transferred onto the head of the pilot who provided the flight.

This issue was also addressed in Administrator v. Riggs, NTSB Docket SE-19388 (December 13, 2012).  In Riggs, prior to flight, the operator had obtained a Release from a series of participants, which expressly warranted that the flight participants were making a filming production.  The participants were then filmed in an experimental aircraft during flight doing various maneuvers.  The film was then going to be spliced together with “stock” footage in order to create the illusion the participants were engaging in a reality “Top Gun” style dogfight, and was to be scored and mixed with “action” music.  The participants would then be provided with a DVD of the post-production finished product at some point after the conclusion of the flight.  Regardless, NTSB Administrative Law Judge Geraghty held there was no intent on the participants to be an “actor,” and that they had signed the Release language essentially as a “ruse” to obtain an illegal “thrill ride” in an experimental aircraft.  To the ALJ in Riggs, it would not matter if the DVD had been subsequently posted electronically on the new media and/or potentially seen by hundreds or even millions of viewers.  Accordingly, the operator was held to have violated, among other things, FARs Part 91.319(a)(2) and 91.9(a), and his certificates and ratings were all revoked.  Therefore, it is now established that giving an individual a DVD “keepsake” of a recorded flight experience in an experimental aircraft does not equate to nor constitute a “motion picture, television, or similar production.” 

Notwithstanding, the FAA’s position in its Legal Interpretation is shortsighted and out-of-date as it equates “personal use” with not being a legitimate “motion picture” or filming production.  The FAA approved Motion Picture Manual is not limited to productions released commercially in a theatre or on home video.  Rather, the Motion Picture Manual extends to productions contemplated to be released for public viewing or distribution via any “other similar accepted venue.”  The term “other similar accepted venues” should include “new media” projects distributed via the Internet.  Videos posted on the Internet that might have traditionally been considered “personal” in nature can quickly go “viral” and begin generating advertising revenue.  Take, for example, the “Gangnam Style” video only seen on the new media which has generated millions of dollars.  Nowadays, online viewership can often exceed TV viewing of some shows (i.e. late night, PBS, local public service channels, etc.). Thus, the line between “personal use” and public distribution via the Internet is blurred in today’s “new media” world, and NTSB ALJs may often be out of touch with current technology.   

It should be noted that the FAA only recognizes filming products “contemplated to be released for public viewing or distribution” at the time of the filming production.  This is significant because U.S. Copyright Law gives the rights holder a lifetime plus 70 years to determine whether it wishes to distribute or financially benefit from the work.  17 U.S.C. § 302.  Thus, a production that was not “contemplated to be released” at the time of filming might later be turned into a full-fledged production or release.  Based on the FAA’s definition, however, the subsequent release or commercialization of the copyrighted work would be irrelevant if the production was not “contemplated” to be released at the time of production.  Conversely, if the aerial shots were originally contemplated for public distribution at the time they were shot, but a subsequent decision was made to “shelve” the project, would this electronic capture still be okay with the FAA?  As stated previously, the ultimate onus is on the pilot (or aerial filming company) to investigate, guarantee and assure that the filming production is actually and currently “contemplated” to be publicly released or distributed by some “acceptable” media outlet.  Otherwise, the pilot risks subsequent FAA Enforcement Action and destruction of their livelihood and career. 

Conclusion

Clearly, as described above, the regulation of the use of experimental aircraft in filming operations is in sore need of a complete overhaul and updating.  The FAA needs to clearly revise, define and eliminate any ambiguities regarding the circumstances under which an individual’s carriage aboard a filming flight is “essential for the purpose of the flight.”  Moreover, the FAA’s Legal Interpretation concerning exactly what constitutes a legitimate “motion picture, television or similar production” is several decades out of date.  It needs to be revised to consider the present day impact of “new media” and the Internet on the distribution of public copyrighted works.  Without further regulation, updates or modernized published guidance from the FAA, operators using experimental aircraft are at great personal risk of the FAA second-guessing their determinations, or worse, have to respond to Enforcement Action from the FAA.