The Legal Issues of Drone Aircraft
[BY EdKinberg & KellySwartz ]
The introduction of affordable, easy to operate drones with sophisticated imaging and sensing capabilities opens up worlds of possibilities for entrepreneurs. New and established businesses are successfully using drone technology in the entertainment, agriculture, construction, real estate, and shipping industries. Use of this new technology raises new issues, along with old issues, for both consumers and providers of drone services.
By and large, drones are operated safely. However, there are risks when using these devices. After all, everything that goes up must come down. To help protect from personal liability in these situations, any drone business should be operating by a state-recognized business entity, usually a corporation or a limited liability company. Florida corporate entities can be created quickly enough online at www.sunbiz.org. However, creation of the entity is just the start. After formation, it is important to create a set of documents that govern the day to day operations of the company. These documents are even more important when more than one person is involved with the operation of the company. Well drafted written agreements ensure that everybody involved is on the same page. These documents can be turned to for guidance when disagreements inevitably arise within the business. A well drafted document will anticipate conflict and provide a framework for resolution before minor disagreements can develop into crisis.
Drones are considered aircraft by the Federal Aviation Administration (FAA). Therefore, all drone operations must be in compliance with FAA regulations. Any use of a drone in connection with the goods or services provided by your business, in contrast to only recreational use of the drone, is subject to significant FAA oversight. Only businesses holding a Section 333 Exemption or, as of August 29, 2016, complying with Part 107, may lawfully operate drones. Companies must apply to the FAA to receive a Section 333 exemption. The process requires the applicant to provide technical information about their drone, identify the specific FAA regulations from which they should be exempt, and convince the FAA that public safety is served by granting the exemption. All drones flown in compliance with a Section 333 exemption must be operated by licensed pilots.
While companies holding exemptions may continue to operate their drones, the Part 107 regulation makes drone operation more accessible by removing the requirement that the operator must be a licensed pilot. Under the Part 107 regulation, all individuals who would like to be qualified as remote pilots in command must take an online course on drone operations. Those who do not hold a valid pilot’s license must also take an aviation knowledge test administered by the FAA. Companies can lawfully operate under Part 107 provided they follow the specific regulations, including airspace restrictions, provided by the regulation and the drone is flown by a qualified remote pilot in command or by someone at least 16 years old who is directly supervised by a remote pilot in command.
Not surprisingly, privacy issues are rampant with today’s increased drone use. There remains little guidance on privacy issues, but we do have some rules of thumb. A little known Florida Statute, the Freedom from Unwarranted Surveillance Act, provides the general rule that, absent written consent, a drone cannot be used to conduct surveillance of locations which cannot lawfully be viewed from ground level. There are exceptions to this rule, which allow surveillance by those licensed to engage in activity by the state, but the statute is unclear as to what surveillance activity may be exempted from the prohibition of the statute. The most cautious approach is to always receive written consent before conducting aerial surveillance of locations behind fences or otherwise unobservable from ground level.
The most common uses of drones are also fraught with copyright issues. The general rule is the individual taking an image, whether it is a photo, video, or sensor imagery, owns the rights to the image. In cases where drones are being contracted to take images for others, it is important to have an understanding of who retains rights to the images. It may be necessary to have a written document transferring or licensing the copyright interest in the image from the camera operator to the purchaser of the drone services. Failure to do so may result in infringement allegations down the road.
The use of drones provides unprecedented opportunities for businesses to innovate. An understanding of traditional business issues along with an appreciation of the issues specific to the drone industry can help your business thrive.
Ed Kinberg is a government contracts and construction law attorney as well as founder of the Drone Law Section at Widerman Malek, P.L. in Melbourne, FL.
Kelly G. Swartz is an intellectual property attorney and chair of the Drone Law Section at Widerman Malek, P.L. in Melbourne, FL.