When somebody acquires a plot of land, how much of the sky above it do they own? How much of the earth beneath it?
In English common law, there is a doctrine titled “Cuius est solum, eius est usque ad coelum et ad inferos” (Latin for “Whose is the soil, it is up to heaven and down to hell”), which stipulates that anyone who owns one acre of land owns the acre of exosphere above it and the acre of liquid iron and nickel 1,800 miles underneath.
Throughout most of American history, there has been an arbitrary adherence to this principle, but ever since mankind’s advances towards air travel, it has incrementally lost its footing. This trend began in 1926, when Congress passed the Air Commerce Act, effectively mandating that the U.S. government owns the airspace 36,000 feet above its surface. In United States v. Causby (1946), the Supreme Court held that landowners were entitled to the possession of the lower altitude airspace above their land, but with the increasing ubiquity of drone technology, even this degree of ownership seems moot.
“Drone technology is a multibillion dollar industry,” explains Jeff Carrillo, the owner of the Dallas-based aerial photography company Tarillo Vue. “This has been the biggest thing the aviation industry has seen, as far as change, in years.”
The capacity for drone technology to help conduct military operations has been widely reported, but the scope of its utility in civilian life is ever expanding. Drone photography itself is proving to be a revolutionary achievement, and it is expected to penetrate even more sectors of the economy as its expansion continues.
So, what local businesses use drone photography? What regulations are in place regarding drones? What should aspiring drone photographers know before they purchase a drone and delve into this emerging field?
Given just how cutting-edge this technology is, this niche is so volatile that the answers to all three of these questions could change within a year, but in its current form, the market for drone photography is a promising litmus test.
“Most of the industries we work in involve land surveying, aerial mapping work and roof inspection,” says Mr. Carrillo, whose operation exclusively uses drone technology to achieve aerial photography. While Tarillo Vue does, in fact, delve into the more artistic circuit of the profession, opportunities have been more plentiful and lucrative when applied for utilitarian purposes. Roof inspectors, for example, can use drone photography to remotely survey the many areas that pose a risk to workplace safety, thereby mitigating workplace injuries and the incurred liabilities that would follow. Moreover, such technology can expedite the surveying and inspection process, effectively giving a company’s workforce the capacity to operate at greater efficiency.
In recent years, drone photography has also been used by farmers, cartographers, surveyors, carpenters, archaeologists, climate scientists, journalists and law enforcement, among other professionals. Its ability to effortlessly capture a bird’s-eye view of a property provides unrivaled functionality to real estate and construction advertising. It has helped cut costs for firms that would otherwise use helicopters to capture aerial footage.
Suffice it to say, the possibilities are vast, but those who endeavor to enter this particular segment of photography should note the legal barriers.
When reached for comment, a spokesperson for the Frisco Police Department did not seem to indicate the existence of any local ordinances pertaining to drones, but did state, “Photographers must be mindful of the current airways they are flying in and know if there are any restrictions in place, temporary or not.”
According to the Texas Government Code Section 423.002, drone photography can only capture footage of private property “with the consent of the individual who owns or lawfully occupies the real property captured in the image.” To use drone footage for surveillance purposes is a Class C misdemeanor. Likewise, law enforcement cannot capture drone footage for such purposes without a warrant. Per Texas law, drone photography is strictly prohibited in the confines of correctional facilities and critical infrastructure facilities (i.e. oil refineries, steel factories, etc.).
On a federal basis, drone regulations fall under the purview of the Federal Aviation Administration (FAA), and the agency enforces regulations based on whether drones are used for recreational or commercial use. These laws are laid out in the FAA’s Part 107 provisions.
“As a hobbyist, you are not required to have a commercial drone operator’s certificate,” explains Patrick Arnzen, the owner of the Addison-based flight training company Thrust Flight. “If you were to be a hobbyist and try to sell your services, that would be illegal.”
The FAA places strict emphasis on this demarcation. If a recreational drone photographer uses a picture for marketing purposes or receives any compensation for such use, they are in violation of the law. “If you are doing anything like that, legally, you are supposed to have an unmanned aerial vehicle (UAV) pilot’s license,” explains Mr. Carrillo. “If you are doing it recreationally, you do not have to have a UAV pilot’s license. You still have to register your drone for recreational use, though.”
So, what does the certification process for commercial use entail? “A lot of what is required to get a commercial drone operator certificate is the same thing that is required to get a private pilot’s certificate,” says Mr. Arnzen, whose business issues such licenses for commercial UAV operators. “It is not quite as in-depth, but commercial drone operators are still required to understand the different airspace and operating rules.”
While the duration of training may vary depending on the certification program, applicants must take a written test and submit an application to finalize the process, which Mr. Arnzen says can be done in a weekend.
Proficiency, on the other hand, cannot be attained overnight, and coupled with the burden of customer acquisition, it can be overwhelming to a freelance photographer. While trial and error is indeed an option, Mr. Carrillo suggests cutting teeth under the supervision of experts who have paid dues in this field. “A good way for people to get into drone photography, if they are not as business-minded and they want to be able to go fly drones, is to reach out to companies like us and see who is hiring.”
Those who choose to do the former must note that the FAA enforces a strict height limit of 400 feet for all UAVs. This begs the earlier question — when somebody acquires a plot of land, how much of the sky above it do they truly own? Sure, there are some skyscrapers whose height exceeds those parameters, but at that measurement, drones would be able to fly over most of the buildings in Frisco with ease. There are only 28 buildings in Dallas that exceed such heights.
There are laws in place that recognize private property rights within this context, but given the speed at which this technology is bleeding into civilian life, they may not withstand the test of time. And why should they? Property ownership has never stopped mankind from expanding into a new frontier, and it will not now.
Thanks to drone technology, the sky directly above our heads is the new frontier, and opportunities are especially plentiful for photographers. You could say the sky is the limit.
Garrett Gravley is a Dallas-based arts and entertainment writer, journalist and music critic.