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When Flying a Drone, Do You Need a Property Release for Neighboring Properties?

July 31st, 2017

Peter in California says:

Grant Johnston, who advertises on your blog, had a good question on his own Video blog. Is there an existing photo consent form that includes drone shooting as well as property release in existence? I have left this up to my clients who have photo consent as part of their contracts with their owners, however, I have been discovering that all too often they have me in to shoot before any paperwork is actually signed since seeing the photo results can help make the owner commit.

In some countries, such as Grant’s (NZ), you have to have the permission of all neighbors whose properties will or might appear in the photos or over which you might fly to get your shots.

According to Paul Aitken at thedroneu.com, yes, you should have a property release for the surrounding properties. I’m not a legal expert in this area so I’m going to recommend drone pilots interested in this question to watch this video podcast by Paul Aitken.

Thedroneu.com also has some forms for a real estate shoot in the resource area of their website. But you need to become a member to access them. Here is another location to get forms. And here is another.

Update 8/1: The key to this issue is that currently there is almost no agreement about trespassing in low airspace (ground to 400′). The FAA says it controls it. Oregon passed a law that says if you are under 350′ you can be sued for trespassing. Some cities have passed similar laws. And there is little or no court cases in this area. Paul Aitken makes a short reference to this. This is why he suggests property releases.

Update 8/5: After some more research on this subject, I found this post that summarizes the answer to the whether one is allowed to fly a drone over private property. In short, it is not clear. What is clear is that if you land or take off without permission, the operator can be sued for trespass.

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23 Responses to “When Flying a Drone, Do You Need a Property Release for Neighboring Properties?”

  • You only need a release if a human being is in the picture. Not a structure. If you blur them out, I would think it wouldn’t even be an issue.

  • All of the attorneys I have heard talk about “Property Releases” (in the USA) they all say that they are unnecessary. Property does not have a “right of privacy”. Other countries may have tighter restrictions.

    The only issues that do come up are for Trademarked buildings such as the Empire State building in NY or the Transamerica building in SF when the use of the photograph may infer an endorsement. A skyline photo that includes those buildings along with others as they appear in real life would be perfectly fine for any use.

  • Does anyone use a property release?

    People often make things sound more complicated than they generally are. Not sure about the podcasts advice about property releases, but their advice about shutting down routers, flying in heavy WiFi etc, leads me to believe they’ve never actually done it.

    We do cell tower inspections and fly feet from active towers (with microwave) and we’ll occasionally loose our video downlink. We’ve never lost control.

  • @Rusty

    Are you sure about that? I’m not sure if you mean just someone walking down the street or someone standing in their backyard. If someone is just walking down the street, in the US, you most certainly do not need a release if you capture them in your shot. Even someone on private property I feel would be a very slippery situation. You may be on private property but if I can see you from a public space than it’s fair game. The “eyes” (i.e. camera) cannot trespass. I’m sure this could go 1000 different ways but that’s always the way I’ve interpreted the law.

  • I have not used them and am not contemplating it. I believe the legal interpretation says that there is no expectation of privacy or something similar. I shoot 2-3 a day from the air and it’s never been an issue.

  • I think my question was less about “do you need one” and more about “if you do, where can you find one in the public domain.” Different countries have different laws and regulations and this blog goes global. I am perhaps a bit sensitive about this having started my photo commercial career in Los Angeles where due to the exploitation of private properties as backgrounds in movies, TV and advertising, property owners became insistent on having a say in the matter. So I do have a standard property release.

    I take the approach that if you are including a property in an aerial commercial shoot, at the least, it is polite to let the owners know and let them feel consulted, and more importantly, by doing so avoid possible future legal action that becomes expensive even if you win. And who knows what rules either country-wide or locally will start being enacted. And this too will be different from country to country, state to state, county to county. And local authorities may or may not actually have the legal right to enact ordinances over central government air control, but once enacted, you will still have to deal with it.

    So why not head off possible problems, get neighbors on your side (or at least not against it) with a simple form where they agree to two things: 1. they don’t mind if you include their property in your aerial images commercially (and understand that they might not actually have a legal say in the issue) and 2. allow you to fly over their property to obtain the images you need to get (and again understand that they might not actually have a legal say in the issue).

    Then for the property owner and/or your commissioning client that could be a little more detailed about permissions obtained for shooting private property. And this goes beyond aerial shots but stills and video of the property to help avoid possible issues long after the shoot is done and even after the property is sold. This could be part of a photo shoot contract for the job.

    So whether such a form, release or contract is actually needed legally, I would like to know if there are such templates available so none of us have to go to a lawyer and pay legal hourly prices to have one. Or do we need to take one of the standard property releases available and add in mention of aerial issues?

  • I appreciate Peter’s concerns and like his friendly approach.

    The short answer: You do not need property releases from surrounding properties in the USA for “incidental captures” of their property while shooting drone footage or photographs of other real estate or property. This even eliminates those pesky trademarked and copyrighted skyscrapers from claiming you violated them, lol.

  • Scott and Dean

    I do understand the rules and laws in the US and even, believe it or not, the state I shoot in. And as much as we Americans may think we are the world, we are only one country in which drones are flown and where laws and rules are made. And Scott that very nice link you posted for a search for “Photo Property Release Form” is wonderful for all those that don’t yet have a property release in their files. I have many such and have had since before the introduction of the internet. What I am looking for is one that includes specifically DRONE usage where the craft actually flies across their private property and/or in the that process takes images that may include all or part of their property. I know the FAA says that this is not an invasion of private property rights but home owners, both small properties and the large ones owned by people with deep pockets and lawyers on call, that may, rightly or wrongly, decide to make an issue out of it. This is not addressed in a standard property release. And believe me, I have done many Google searches with all sorts of configurations of search terms. I did find one photographer who has an interactive form on his website dealing with this specifically. The client, owner and neighbors can read it and then sign it and it is delivered to the photographer over the internet. But I am old fashioned and like to have something on paper with a pen and ink signature which also gives me the opportunity to make a face to face contact with the owner involved. I find they visibly relax when that happens.

  • We work with a professional drone pilot and therefore we do not have to deal with this ourselves. I trust he would know if a release form was required in a shoot. So far nothing has come up like this. Hope it never does.

  • So….getting a property release from the neighbors….. is that just the ones adjoining the home being shot or does that include the 15 or twenty in the shot? If no, then why not, don’t they have just as much rights? How long do you think it would take to get all those signatures after explaining what you are doing? How many would you have to return to multiple times before you found someone home to even sign. And then there is the big question, you get your 4 to 15, whatever to sign but you come against the one next door that says “No Thank You”….. Or how about the wife comes home later and says NO, I don’t care if my husband signed….

    I guess Google earth, and those other services better get busy getting their releases in order…… After all, I can zoom right in on your backyard…. How about street view….OMG! will it never end?

    Can anyone show me a successful suit where this has even come up (in the US)? Can anyone show me any suit at all?

    And I am not one that thinks “We Americans” are the world….I just think we are number one…something wrong with that?

  • The key to this issue is that currently there is almost no agreement about trespassing in low airspace (ground to 400′). The FAA says it controls it. Oregon passed a law that says if you are under 350′ you can be sued for trespassing. Some cities have passed similar laws. And there is little or no court cases in this area. Paul Aitken makes a short reference to this. This is why he suggests property releases.

  • It is a shame that the FAA is not becoming more explicit in its rules and regulations for the US even to the extent of information local communities what they have control over and what they don’t as they created ordinances. For example, in searching for existing releases, I came across the “83′ law”. It suggests that if you fly at 83′ or below you are indeed trespassing and breaching privacy but this is based on a legal court case that in discussions I have read seems to be more about the ability of a farmer to utilize his land for agricultural purposes at the end of a runway (https://en.wikipedia.org/wiki/United_States_v._Causbyf) But many people writing about drone use accept this as law that applies to drones.

    So there seem to be differing views of just what constitutes both the expectations of privacy regarding aerial views and what doesn’t. Too many grey areas for me. So I think better safe than sorry.

  • I think many of you are creating confusion where none actually exists. The FAA does indeed control airspace “from the ground up”, but they’re also very clear that state and local ordinances can impose further restrictions (like whether or not it’s OK to fly over someone’s house at a specific altitude). That’s it. You can find out what your local authorities have enacted regarding drones, if anything, and comply with it. If they pass a different ordinance next year, you’ll comply with that, too.

    You don’t need a property release to photograph someone’s house, either intentionally or otherwise. It doesn’t matter where the camera is, unless you’re physically trespassing. Flying a drone over someone else’s house at low altitude *could* conceivably be called trespassing, at least far enough to create headaches for everyone involved, but that’s a separate issue from the photography itself, and isn’t going to be on a property release form. What Peter should be looking for is a form that gives him permission to fly over someone’s house, although I have to say that he’d be way, WAY better off to just go knock on the door and say, “Hey, I’m about to fly a drone to take pictures of your neighbor’s house, might need to fly over that corner of your property at about 30′ — just wanted to give you a heads-up. Thanks!”

    So many things in life are just easier when you slow down and make eye contact and just talk….the first thought should almost never be to get the lawyers (and forms, and signatures) involved. You wouldn’t get a form filled out and signed if you wanted to WALK over their lawn, you’d just ask them nicely for permission. This is no different.

  • This will certainly be one of the more-popular posts, at least short-term:).

    My initial thoughts are directly in line with with Jerry Miller’s. The practical application of such a requirement would wipe out the PFRE aerial segment. Even if you outsourced it, the costs to execute would make aerial shots prohibitively expensive.

    From my own education on copyright and trademark infringement, in general, the only time a release is required for a person (discounting formal modeling shoots), is if the person in question makes their living using their own likeness. This is aimed at celebrities. (You cannot take a picture of The Rock, then print his image on some shirts, and start selling them.) Even that can be overcome by obscuring the image. From a practical matter, most of my aerials are such that, given the scale, an individual’s too small to be a consideration.

    At some point this will be tested legally. We can only hope it’s not one of us who draws the short straw.

  • @JT, if you are selling or using an image with a recognizable photo of somebody for commercial use, you want a release whether the person is a professional model or not. Check out Ed Greenberg and Jack Rezniki’s copyright presentation at BH Photo posted on Youtube for a cautionary tale. Ed’s an IP attorney in NY that specializes in Copyright issues and Jack is a professional photographer.

  • JT Pedersen wrote: “… the only time a release is required for a person (discounting formal modeling shoots), is if the person in question makes their living using their own likeness…”

    This is false. You can’t take a photo of anyone and use their likeness commercially without obtaining written permission. Doesn’t matter if the person in question is a celebrity, or Joe Sixpack, or a hobo. “Fine Art” photography doesn’t even require a release at all, and many a lucrative career has been built on photographing poor brown people in other countries.

    Regardless, that’s not relevant to the discussion, which is centered on PROPERTY releases, not model releases. Houses, not people.

  • Hi Scott,

    I was hoping not to get into finer details, so I’ll try to keep it light. For commercial purposes (distinct from a ‘news’ or non-profit application), a release is needed if a person’s likeness will be used for profit. The point I was driving at is, if there are people, incidentally, in a property shoot, perhaps in an aerial image at 100′, 500′ distant, it is unlikely you are going to need to run over and chase down a release. Consider aerial shots of a shopping mall or the like.

    The core issue remains, for most applications, requiring property releases on adjacent properties makes this an instantly unprofitable business. My market, as a modest example, is just warming up to aerials at a modestly profitable price point. Adding this requirement, and the costs doing it would entail, would kill it.

  • A lot of good points in this conversation. All circulating around my question “if you want a drone release, where can you find one that is in the public domain?” Whether you need one or not is a connected question and a valid one. But so far, my original question has not been answered.

  • I don’t fly drones so I don’t even know why I’m commenting. I just don’t see how flying a small craft over a person’s property for the purpose of taking photos could be considered anything but trespassing. I think Oregon has got it right. I don’t want to cause any headaches for anybody of course, but that’s just what I think.

  • @Peter Daprix,

    I think your question HAS been answered…you just don’t like the answer. The reason no one can point you to a property release that also authorizes drone fly-over rights is that it doesn’t exist….just like left-handed beer cans don’t exist. You can continue complaining that no one has told you where to buy left-handed beer cans, or you can conclude that maybe it’s a problem that doesn’t actually need to be solved.

    Approaching total strangers who have zero skin in what you’re doing with a legal form to sign is not a good way to approach the issue, in my humble opinion.

  • Just to round out this discussion. I finally finished up a few jobs that were taking all my time over the least few days so I could come back to what Larry posted at the top here and refresh my memory. I would suggest that anyone flying drones over private property for commercial purposes click on all the links Larry supplied. There are some good discussions and various resources. Even a very short drone property release. I also found a more involved one as a PDF from The Drone EU that was listed on Google outside of their Pay for Membership that I think I can modify for my uses: http://www.daedalusdroneservices.com/wp-content/uploads/2016/05/Property-Owner-Consent-Form-10-14-15.pdf. I think this may have been the one Larry was referring to that required a $350 sign up fee.

    I think I will have a more involved release for the property owner and a simple short one for the immediate neighbors if their properties appear in the shot or if I have to fly over their property whether or not it is legally required. Lets face it, we have the laws as written by the FAA and Federal Government, then we have local ordinances and rules and regulations that may or may not be in conflict with the FAA in the US. But other countries all have their own approaches to this. And outside of the legal aspects, if those with money want to make your life a misery with a civil law suit they can even if they don’t have a leg to stand on legally. So for self protection, my feeling is it is wise to protect yourself, despite Scott’s obsession with left-handed beer cans. Amusing Scott but not very relevant.

    That is my take. Not whether you need one or not but if you are, or want to have one, where can you find one that does the job.

  • Not sure if you are just pulling our chains Peter or if you really believe in left handed beer cans….

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