Unmanned Aircraft and Your Privacy

Do you have recourse against a “peeping drone?" Under proposed federal regulations, some uses of drones may become illegal.

Question:

I was sunbathing on my balcony recently and a drone buzzed me—it flew right over me and hovered before flying off. I watched it return to a group of people gathered around a van -- they looked like a film crew. Now, I was wearing a swimsuit and was covered, but I don’t want to show up in a movie! Can this crew use the photo of me without my permission?

Answer:

Probably not, but it depends on where you live, who used the drone for filming, the purpose behind their drone footage, and how they use it.

Right of Publicity

The common law right to privacy prohibits others from using your likeness, photograph, name, or image for their own private benefit. A separate, but related, right developed from this aspect of privacy law is called the “right of publicity.” The right of publicity gives you the legal power to control the commercial use of your image, even if you are not Beyoncé (and, really, who is?). In other words, you don’t have to be famous to have the right to control the commercial use of your image; everyone has that right in states that recognize it.

State Laws

Some states have passed laws explicitly protecting the right of publicity. Other states have recognized the right through court decisions, or what is called common law. Still others do not recognize the right at all.

California has recently passed a law, to go into effect on January 1, 2016, which makes a person liable for physically intruding on someone's privacy when that person knowingly enters "into the airspace" above the land of another without permission. The new law applies when the entry was done to capture any type of visual image, sound recording, or other physical impression of the land owner engaging in a private, personal, or familial activity; and the invasion must happen in a way that would be offensive to a reasonable person. (Calif. Civil Code section 1708.8.)

Exceptions

Even where the right of publicity is recognized, images of individuals may be used without violating the right if they are not used commercially but instead for certain other purposes, including:

  • news reporting
  • informational purposes, and
  • public interest.

For example, if it was a news crew flying the drone to film your neighborhood for footage about sky-rocketing rents and you happen to be in a shot of your building, that use is likely not a violation of your right of publicity. Similarly, if the crew is shooting a documentary about your city and uses the footage to show the various neighborhoods, that would also likely be permissible. The key here is that your image is not being used commercially.

Other Privacy Rights

However, even if the film crew uses the drone photo for a non-commercial, permissible purpose, your right to privacy may limit how they use the drone photo. The right to privacy includes the right:

  • to control your image from appropriation by another (discussed above)
  • not to have one’s private space intruded upon
  • to control the public disclosure of private facts, and
  • not to be depicted in a false light.

For more information about drones, see Is It Legal to Own and Fly a Drone?

Intrusion

If the drone had filmed you undressing inside your apartment by hovering outside your window, you would have a legal claim against the film company for invading your privacy. This is so because you were inside your private space and the drone acted as a creepy, electronic Peeping Tom. Because you were on your balcony, the question is a bit more complicated.

Privacy rights are limited in certain circumstances, too. For example, if you were readily visible from your balcony to others (neighbors, passers-by, even low-flying helicopters), you could not claim that the film crew intruded on your private space. This is because you were publicly visible.

Public disclosure of private facts

Another aspect of privacy law protects your private facts from public disclosure without your consent. In the drone photo situation, if something that the drone photo would depict revealed a private fact about you, the film company may have violated your privacy. For example, consider the situation of an amputee who typically wears a prosthetic and does not disclose his status as an amputee to others. Public disclosure of a drone photograph of that person sunbathing on his deck, out of view of the general public, in which he was not wearing the prosthetic would violate the individual’s right to control disclosure of private facts.

False light

Even if the film crew was filming a documentary, they cannot depict you in a way that shows you in a false light. For example, if the film crew were shooting an expose on prostitution in your city and used the image of you in a way that suggested you were plying that trade, the film company would be violating your right not to privacy by casting you in a false light (and defaming you by suggesting that you are engaged in an illegal activity).

Proposed FAA Regulations

In February 2015, the Federal Aviation Administration (”FAA”) proposed new regulations for “commercial” drones, which the FAA calls unmanned aircraft systems (“UAS”). Under the proposed regulations, a commercial drone operator would have to:

  • be at least 17 years of age
  • pass an aeronautical knowledge test every 24 months
  • obtain a UAS operator certificate (by taking the test mentioned above)
  • fly the drone only within the operator’s unaided line of sight
  • fly at an altitude of at least 500 feet
  • not fly over any person other than those directly involved in the drone flight, and
  • avoid flying in hazardous conditions (such as bad weather) or in a hazardous manner.

Under the proposed regulations, commercial drones could not be used to drop any objects. If the regulations were to be adopted and your situation occurred again, the drone operators (assuming they are using the drone for a commercial purpose) could be cited if the drone flew too close to you or directly over you.

The FAA is taking public comments on the proposed regulations for 60 days, after which it will decide whether to adopt them.

Are You Protected?

Check into the right of publicity laws in your state to find out if you are protected against the nonconsensual use of your image. If so, you may want to talk to an intellectual property lawyer about what to do next.

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