Let me start off by saying that I, like almost 10 million other people, am a fan of Casey Neistat and his daily vlogs. Casey’s style, creativity and storytelling ability are second to none and his videos are highly entertaining. However, the videos are also very controversial when it comes to his use of drones. Yesterday, Casey uploaded his latest video in which he buys a DJI Inspire 2 and Zenmuse X5S (?). Together with his good friends and drone experts, Elaine and Justin, they get on a boat to fly and test the new drone. The group ventures out on to the Hudson River, East River, and in the New York Harbor and capture amazing drone footage of the Brooklyn Bridge and the Statue of Liberty. Within the first 24 hours of posting the video, it has been watched almost 900,000 times and a discussion has ignited in the comments section as to whether this video constitutes legal or illegal drone flying. First of all, I am not a drone/aviation lawyer, but after having watched the video a couple of times, there are a few moments that question the legality of the drone operation and at the same time show the complexity around the FAA’s drone regulations. Let’s take a closer look.
DJI Mavic Pro
Flying a drone in New York City
Flying a drone legally in New York City is pretty much impossible. If you are a commercial drone pilot, flying under Part 107, you would need to request a waiver from the Federal Aviation Administration (FAA) and work with local authorities on the ground to make sure you are in the clear. If you fly your drone as a hobbyist you are pretty much out of luck. The only places where you can fly your drone legally are these five different parks, that are all located outside of Manhattan.
Unless you have access to a boat…
The drone boat
The idea of Justin and Elaine to take Casey and his wingman, Dan, out on a boat and on the river was a smart one. They are no longer on Manhattan and are now in an open space with few, if any, obstacles, no people around and great visibility. It is very likely the safest way to go with the least amount of risk to other people or of breaking any FAA rules. One thing to keep in mind though is that both the waterways and airspace in the New York Harbor are extremely busy. You are dealing with recreational boats, barges, ferries and many helicopters, that are flying tourists around the city and its landmarks, such as the Statue of Liberty. The FAA requires you, among other things, to give way to all these manned aircraft, to keep your unmanned aerial vehicle in line-of-sight and for hobbyist drone pilots to register your drone with the government agency. Btw – the video does not mention if Casey registered his new Inspire 2.
Flying as hobbyists and not for commercial purposes
In the video, Justin, who is a commercial drone pilot by profession, confirms to Casey that he and Elaine are flying as friends, flying for fun as hobbyists (under section 336), but they both know that the drone footage will be used in Casey’s video and that his YouTube channel generates significant economic value both in dollars and exposure. So, even though they claim to be hobbyists, are they really? This is where things get a little murky, like the Hudson River, you might say.
According to the FAA’s website, Know Before You Fly:
“Commercial drone uses constitutes of any commercial use in connection with a business, including: 1) Selling photos or videos taken from a UAS, 2) Using UAS to provide contract services, such as industrial equipment or factory inspection, 3) Using UAS to provide professional services, such as security or telecommunications, 4) Using UAS to monitor the progress of work your company is performing.”
On the regular FAA website, recreational or hobby use of a drone is defined as:
“Recreational or hobby UAS use is flying for enjoyment and not for work, business purposes, or for compensation or hire. In the FAA’s Interpretation of the Special Rule for Model Aircraft, the FAA relied on the ordinary, dictionary definition of these terms. UAS use for hobby is a “pursuit outside one’s regular occupation engaged in especially for relaxation.” UAS use for recreation is “refreshment of strength and spirits after work; a means of refreshment or diversion.”
Since they are not selling the photos or video footage or providing any of the other services mentioned by the FAA they seem to be in the clear. However, at the same time, they are not just flying for fun. They are actually filming and providing instructions to Casey. In the video, he doesn’t seem to fly the drone himself but is merely controlling the camera when they are filming the Statue of Liberty. Furthermore, Justin and Elaine must have known that the footage captured by the Inspire 2 and Zenmuse X5S combo would be used in one of Casey’s videos. We do not know if there was any formal kind of relationship between Justin/Elaine and Casey. Did Casey pay for their time and/or instruction or did Justin/Elain provide those services for free as they are good friends? Any form of payment could be perceived by the FAA as receiving economic value in exchange for their services and thus making this a commercial drone operation instead of a recreational one. In the past the FAA has adopted a very broad view of activities that constitute commercial operations, basically receiving anything of value could be considered a form of compensation, which could apply here as the agency could argue that the exposure from Casey’s video represent significant economic value to Justin and Elain.
In the video, Justin and Casey explain dealing with the legal side of flying a drone around Manhattan as follows:
Casey asks Justin: “talk me through some of the legalities.”
Justin: “Well, we’re flying as friends. Like, this is us essentially having a good time…”
Casey: “So, this is hobbyists flight..”
Justin: “This is me and Elaine like, exactly, we are flying for fun. We not flying over people. We not flying on controlled airspace.”
Casey: “What is this airspace?”
Justin: “So we’re directly over the Hudson. We’re outside of LaGuardia, JFK, Teterboro. All that stuff. We outside of all the aircraft approach and …”
Casey: “What about that heliport I see right there?”
Justin: “So heliports, we just notify them. So it literally takes a phone call. We will be operating a drone of under 5 pounds. … exactly, we already did that. So it’s simple, I mean it is not for commercial purpose, we taking this out, testing your new toy that we bought.”
Casey: “So, we are following the rules, which involves a boat, but we are following the rules. Leave me alone FAA, please, please, leave me alone. Or contact this guy (pointing to Justin).”
Btw – Controlled airspace merely indicates the presence (authority) of an Air Traffic Control center. Both in controlled and uncontrolled U.S. airspace the FAA rules and regulations apply.
At one point in the video, Casey points to a boat in the distance: “You are all the way at that boat?” The video does not provide enough details to be sure, but it might well be that the Inspire 2 is flying well beyond line-of-sight of the operator. If that is the case, this would be considered illegal drone flying under the rules of the FAA. Currently, the only way to fly beyond line-of-sight would be for Justin to operate as a commercial drone pilot under Part 107 AND to have a waiver from the FAA.
Flying around the Statue of Liberty
Later in the video, Justin and Casey fly their drone around the Statue of Liberty and capture amazing drone footage. Is that allowed by the FAA?
Late last year the FAA added the Statue of Liberty to the list of Department of the Interior (DOI) sites where drone flights are restricted to up to 400 feet within their lateral boundaries. So the question here becomes, how far was Justin flying the drone when Casey was capturing those amazing shots of the Statue of Liberty?
In this case, it seems that Casey bought the Inspire 2 and Zenmuse 5XS combo from BandH. The shape of the camera and gimbal exclude the Zenmuse X7, which would have allowed them a longer lens and thus a greater distance. On the Zenmuse X5S, they could have used different lenses, however looking at the footage, that does not seem to the case. It seems to be the standard and pretty wide DJI lens (MFT 15mm/1.7 ASPH) mounted without the lens hood. If you use a calculator like this one and plug in all the numbers, it would mean that the drone was at around one hundred feet away from the Statue of Liberty when they took this shot.
Even if you try out different DJI cameras, sensors, crop factors, and lenses that they might have used, you still have to be relatively close to the statue to get shots like these. At worst I got to an estimated distance of 88 feet from the face of the statue and at best, using the Zenmuse X7 and 50mm lens, I got to a little over 220 feet in distance. In any case, even though they might not have been flying over the Liberty Island, it sure looks like they were flying their drone within the 400 feet parameter. Keeping the boat and the drone pilot outside of the 400-feet zone drone is unfortunately not good enough.
In the end
In conclusion, the FAA drone rules can be complicated and not always easy to understand. There are a lot of things that go into figuring out where and when you are allowed to fly a drone, as well as who (commercial pilot or hobbyist), is allowed to fly a drone. Casey Neistat uses drones in many of his videos and, especially in the past, he has broken many FAA rules. At the same time, Casey is pushing the boundaries of what can be done with drones, not just in a physical sense (check out this video of a drone lifting him in the air), but maybe more importantly, in a legal sense.
Of course, I hope that Casey will keep making videos using his drones. However, I also hope that the FAA will strive for simpler drone rules, better definitions and better education for drone pilots to keep our national airspace safe, to protect people on the ground while at the same time creating ways for people like Casey and others to be creative and capture amazing drone footage.
Today, for instance, I received an email from one of our readers wondering why the FAA doesn’t create a drone day. One day per month (or year), when hobbyist pilots would be allowed to fly their drones around national landmarks or in certain National Parks to get those amazing photos and aerial videos. I’m sure many people would jump at that opportunity. Complicated rules or simply prohibiting people from flying their drones at certain places, is not going to stop them as we have already seen in many cases.
What do you think about Casey’s video and drone rules in general? Let us know in the comments below.
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