Hi all,

It is dawning on me that I need to be protected from potential lawsuits on an upcoming aerial shoot.  A huge construction company has hired me to shoot a "work in progress" video of a 90 acre project.  There will be hundreds of their employees and contractors on site.

I have been given verbal permission to fly over the site and the people... but I feel that I need something documented in contract form.  Expressed permission.

Any thoughts about this?  Any experience with a contract of this type?

(Yes, I am FAA certified via Part 107)
Thanks,
Matt

Hey Matt, in a perfect world, I think you would need a signed release form from each person you would be flying over, but you might also be able to have your client sign a blanket release, or hold harmless agreement. Here is a quick link on the subject:

https://www.dronepilotgroundscho ... flying-over-people/

You might also want to check the FAA website. Good luck!

Third Party Liability Insurance. Trust me....is the best option.

Hi Guys... thanks for replying.  I already have extensive liability insurance for my video production company, which now covers aerial work too... so I can check that one off.
I don't believe that I need to get a waiver for this since the company is hiring me with full knowledge that I am flying over their employees and contractors.  I just need to make sure I have a simple release form that is legally binding, stating that the client gives me permission to fly and that the inherent risks to all employees and contractors are their responsibility.

Mabou2 Posted at 2017-8-25 07:56
Hi Guys... thanks for replying.  I already have extensive liability insurance for my video production company, which now covers aerial work too... so I can check that one off.
I don't believe that I need to get a waiver for this since the company is hiring me with full knowledge that I am flying over their employees and contractors.  I just need to make sure I have a simple release form that is legally binding, stating that the client gives me permission to fly and that the inherent risks to all employees and contractors are their responsibility.

That sounds about right, but you will find if your AC drops on somebody's head that's third party liability, but can't be criminal damage liability as long as you have permission from the owner, but he might have problems with his own health and safety pertaining to his employees, hope the other 99 are happy with his decision .
There is also a ruling that the ultimate decision to flying completely rests with the pilot, so you would have some responsibility especially in the advice you give to your customer.
You would also have to do a risk assessment Mitigation to reduce the likelihood of hazard happening and if it happens the severity of its impact, this is something you should be offering up to your customer.

hallmark007 Posted at 2017-8-25 08:36
That sounds about right, but you will find if your AC drops on somebody's head that's third party liability, but can't be criminal damage liability as long as you have permission from the owner, but he might have problems with his own health and safety pertaining to his employees, hope the other 99 are happy with his decision .
There is also a ruling that the ultimate decision to flying completely rests with the pilot, so you would have some responsibility especially in the advice you give to your customer.
You would also have to do a risk assessment Mitigation to reduce the likelihood of hazard happening and if it happens the severity of its impact, this is something you should be offering up to your customer.

Folks,  assuming you are flying under part 107,  It is my understanding that if the people are not DIRECTLY involved with you flight, (PIC, VO, etc), it is NOT permitted without an FAA waiver.   Regardless of anything the people or your client signs.  However, the liability waiver may be needed/helpful to get the FAA waiver.

BaerEssentials Posted at 2017-8-25 08:46
Folks,  assuming you are flying under part 107,  It is my understanding that if the people are not DIRECTLY involved with you flight, (PIC, VO, etc), it is NOT permitted without an FAA waiver.   Regardless of anything the people or your client signs.  However, the liability waiver may be needed/helpful to get the FAA waiver.

Hi Baer,   yep, I'm Part 107.

The only time you need a waiver from the FAA (to the best of my understanding) is if you are flying over people who have no connection to the project.  For example, flying over a music festival.  The festival operators have hired you, but the people on the ground are their guests and not connected to the flight operation.

In my case, the General contractor is hiring me to fly over their grading project, which is manned solely by their people.  So all I need is written permission (from the contractor) to fly legally.  They are responsible for their people under the umbrella of their company.   To be a bit more direct, I am flying to show the work their employees are performing.  IF they were working on an operating strip mall and I had to fly over customers of the strip mall, that would require a waiver.
I am WAY open for you to tell me I'm missing something, there seems to be sufficient grey area in the FAA rules that I want to make sure I'm not making a horrible mistake.

Mabou2 Posted at 2017-8-25 09:08
Hi Baer,   yep, I'm Part 107.

The only time you need a waiver from the FAA (to the best of my understanding) is if you are flying over people who have no connection to the project.  For example, flying over a music festival.  The festival operators have hired you, but the people on the ground are their guests and not connected to the flight operation.

As I am new to this, I am certainly not claiming to be knowledgeable, but...

§107.39   Operation over human beings.

No person may operate a small unmanned aircraft over a human being unless that human being is:

(a) Directly participating in the operation of the small unmanned aircraft; or

(b) Located under a covered structure or inside a stationary vehicle that can provide reasonable protection from a falling small unmanned aircraft.


The Advisory circular then goes to further to interprate...

5.11 Prohibited Operation Over Persons. Part 107 prohibits a person from flying a small UA directly over a person who is not under a safe cover, such as a protective structure or a stationary vehicle. However, a small UA may be flown over a person who is directly participating in the operation of the sUAS, such as the remote PIC, other person manipulating the controls, a VO, or crewmembers necessary for the safety of the sUAS operation, as assigned and briefed by the remote PIC.

BaerEssentials Posted at 2017-8-25 09:24
As I am new to this, I am certainly not claiming to be knowledgeable, but...

§107.39   Operation over human beings.

For reference, it looks like CNN was recently able to obtain a 107.39 waiver (Operations over human beings).

It does not look like it was easy to obtain based on the following .pdf...

https://www.faa.gov/uas/request_ ... 7-03321_CNN_CoW.pdf

BaerEssentials Posted at 2017-8-25 09:24
As I am new to this, I am certainly not claiming to be knowledgeable, but...

§107.39   Operation over human beings.

hmmm... maybe it isn't as straightforward as I recalled.  Dang.

I wonder if a hard-hat constitutes "safe cover"... heh.

Thanks Baer.

Mabou2 Posted at 2017-8-25 09:47
hmmm... maybe it isn't as straightforward as I recalled.  Dang.

I wonder if a hard-hat constitutes "safe cover"... heh.

good luck!  I hope it works out.  Please keep us informed.

Mabou2 Posted at 2017-8-25 09:47
I wonder if a hard-hat constitutes "safe cover"... heh.

Yes, hard hat should do, for a Phantom sized drone anyway, but make sure they comply with the relevant safety standard and aren't made of cardboard.   I would think that everyone should be informed that there are drones flying about and given some safety advice - eg: keep 50m away at all times.

You need to do a risk assessment, write down the result, if it is safe then go ahead.

I don't know much about USA law, but I would be surprised if an employer can sign away the safety of all his employees and give you a document saying that you can fly recklessly over their heads as you wish.  OK he can do it but it shouldn't be of any legal use.  He should always be responsible for the safety of all his employees anyway and you are responsible for flying safely anyway, a piece of paper isn't going to change the law.

As was posted earlier, you need insurance, then you don't really need to worry about the consequences as long as you are not doing something reckless.  If the insurance company is worried then it needs to check up on you, if it doesn't then it is its problem.  If you actually injure someone through doing something reckless then you will always be held responsible and could be charged in court whatever paperwork you have.

A hard hat is protective safety equipment. It could be loosely considered a "protective structure," to quote from BaerEssentials earlier response. However, I am not an attorney, so this is not legal advice. Best of luck to you. Let us know how it turns out!

Mabou2 Posted at 2017-8-25 09:47
hmmm... maybe it isn't as straightforward as I recalled.  Dang.

I wonder if a hard-hat constitutes "safe cover"... heh.

Look at options for flying the site when work is not happening.
Weekends, after knock-off time etc.

Mabou2 Posted at 2017-8-25 09:47
hmmm... maybe it isn't as straightforward as I recalled.  Dang.

I wonder if a hard-hat constitutes "safe cover"... heh.

Aloha Matt,

     Getting that waiver takes 6 weeks to 90 days.  My friend and I just filled out a night time waiver last night.  As usual, Labroides has come to the rescue with his suggestion to fly when the crew is not on site.

     Since time is critical; print out this information and show it to your company and or site contact.  Then work with them to resolve the issues that arise.

     As Baer noted the regs are specific on this but a hard hat is protective by design and they are tested.  These are the regs and waiver guidelines from the FAA waiver page.

§ 107.39 Operation over human beings

No person may operate a small unmanned aircraft over a human being unless that human being is:
Directly participating in the operation of the small unmanned aircraft; or

Located under a covered structure or inside a stationary vehicle that can provide reasonable protection from a falling small unmanned aircraft.

Guidelines for the Applicant;

Applicant must provide data that demonstrates that when the small unmanned aircraft impacts a human being for any reason, whether due to an accident, incident, small UAS failure or malfunction, or remote pilot error, that the small unmanned aircraft will not cause a serious injury or worse.

The data provided should address not only blunt trauma injuries, but also laceration injuries caused by contact with an exposed rotating part, and any other type of serious injury that could be caused by a potentially hazardous characteristic of the small UAS design.

Applicant shall include any operating conditions or limitations that must be followed in order to safely operate over human beings.

Applicant must describe any unique qualifications of the pilot in command, or person manipulating the controls, including any knowledge, experience, or skills necessary to safely operate over human beings.
********************************************
It would be best to use Labroides approach considering the time constraints.

     Hope this helps!

Aloha and Drone On!

The best advice here is from Labroides, do this kind of project at the end of each days work and you will get better results and have a much better log of work completed. It doesn't matter how many people sign safety documents if something goes wrong and someone gets hurt there will always be a way for a good attorney to sue you. Just think about how many visitors such as engineers, architects, salesmen and delivery people will be coming and going from a project that size and most will have no idea you are flying above them and if one of them gets hurt they for sure will say they had no idea of what you were doing or the dangers involved. Everyone of the projects we have done I insist that the site be void of workers or any other non essential personnel to what we are doing. I even go so far as to tell my real estate customers that the owners of the house we are shooting should find something to do for a few hours. If they insist on staying home I tell them up front that they must stay in the house and cannot let any pets out while we are shooting, if they do we land the AC immediately and this could ultimately cost them a fee for our extended time and loss of video footage.

Persons can be like trees.....they look "delicious" to a drone!

Awesome responses guys... thanks so much.  Unfortunately, the option of flying on off days defeats the goal.  The goal of the shoot is to show the crew hard at work, so there will be guys and equipment over the entire grounds.    Hmmmm..

Mabou2 Posted at 2017-8-26 11:47
Awesome responses guys... thanks so much.  Unfortunately, the option of flying on off days defeats the goal.  The goal of the shoot is to show the crew hard at work, so there will be guys and equipment over the entire grounds.    Hmmmm..

Are you able to shoot from outside angles; being creative without flying overhead?  Have a couple ppl working with you to keep ppl out of the flying boundary.  

Just a side note and not being argumentative.... the more folks doing illegal, unethical shoots will, in the long run, make it more difficult for us as a community.  

Please don't get mad at me for saying that.  I am not trying to pick a fight or point fingers.  This is simply the way I see it.

BaerEssentials Posted at 2017-8-27 04:46
Are you able to shoot from outside angles; being creative without flying overhead?  Have a couple ppl working with you to keep ppl out of the flying boundary.  

Just a side note and not being argumentative.... the more folks doing illegal, unethical shoots will, in the long run, make it more difficult for us as a community.  

Hi Baer,   I agree completely.  The more unethical and dangerous pilots on the ground, the more possibility for bad-press and bad public sentiments for all of us.

That is why I'm trying to figure out how to do this shoot by the rules.

It sure does seem to me that situations like I am in, where a client WANTS to hire me to fly over his employees, and the employees agree, should be legal.  The fact that they aren't on the flight crew shouldn't be a show-stopper.  They are agreeing to let me fly over them, which is THE REASON for the project.  Personally, I think this is a scenario that needs to be included in the FAA regulations.  Maybe there are too many variables for this to be regulated, but it certainly does seem like something that should be allowed.

Yes, I can do most of the shots from the sidelines... which DOES bring up another question about the FAA regulations for flying over people.  If I fly (lets say) 100 feet up, but I am 10 feet to the side of being directly overhead... is THAT legal?  I guess the question would be, how far off axis does the bird need to be in relation to people on the ground?  

Mabou2 Posted at 2017-8-25 09:47
hmmm... maybe it isn't as straightforward as I recalled.  Dang.

I wonder if a hard-hat constitutes "safe cover"... heh.

I think a hard hat could be argued by a good lawyer as being under safe cover, might be good to check with an aviation attorney.
Of course, I'm not a lawyer, but I did stay at a Holiday Inn Express last night.

Mabou2 Posted at 2017-8-27 05:22
Hi Baer,   I agree completely.  The more unethical and dangerous pilots on the ground, the more possibility for bad-press and bad public sentiments for all of us.

That is why I'm trying to figure out how to do this shoot by the rules.

Great discussion,

I read on another forum, in the opinion of the author, that if a mechanical failure were to occur and the aircraft could drift onto the people below, that would be considered in violation of 107.39.

Mabou2 Posted at 2017-8-27 05:22
Hi Baer,   I agree completely.  The more unethical and dangerous pilots on the ground, the more possibility for bad-press and bad public sentiments for all of us.

That is why I'm trying to figure out how to do this shoot by the rules.

Mabou2, I had the exact same question last week, so I emailed someone far more knowledgeable than me on the subject.  The answer I was given is that the drone must be laterally 1 foot away from people at any height if they aren't under cover.  Basically, as long as you aren't directly over their heads, you're legal.  Now, how the FAA would enforce this is anyone's guess.

We used a THIRD PARTY LIABILITY INSURANCE on a JLO concert. That will do. This type of insurance cover damages you can cause and also protects your client. Remember its YOU FLYING THE DRONE and if something happends you are the one responsible.....not your client.

Some images

If you were to employ the company's staff (as actors) for the duration of the shoot then charge the company for the amount equivalent to their pay, they would, for the duration, be"directly participating". If the staff had been appropriately informed and were wearing safety hats, I can't see a problem.

Mark G.

I have some samples i can send you in those insurances. I have shoot with HBO-WARNER BROTHERS-IMAX-SPORTS ILLUSTRADED, etc. You can check my instagram page at: @cinefilms. By the way....this is a frame from the concert itself....that was from an inspire 2

Also.....make everyone on the shoot sign a release to discharge you from any damage.

I would think that you would need to post a crowd release notice at the jobsite entrances as well. Add a paragraph to it stating that you and your company will not be held liable in the unlikely event of an accident, and safely fly over the workers as much as you need to. I see it all the time at the concerts and festivals I work. Entry becomes consent. Something like this, with additional wording about the overhead flying...

CROWD RELEASE
(sample)
(Post outside of entry doors or on perimeter of filming area)
By entering and by your presence here, you consent to be photographed,
filmed and/or otherwise
recorded. Your entry constitutes your consent to such photography, filming and/or recording and
to any use, in any and all media throughout the universe in
perpetuity
, of your appearance, voice
and name for any purpose whatsoever i
n connection with the production presently entitled:
________________________.
You understand that all photography, filming and/or recording will be done in reliance on this
consent given by you by entering this area.
If you do not agree to the foregoing
, please do not enter this area.

Blue Ridge Big  Posted at 2017-8-27 11:31
I would think that you would need to post a crowd release notice at the jobsite entrances as well. Add a paragraph to it stating that you and your company will not be held liable in the unlikely event of an accident, and safely fly over the workers as much as you need to. I see it all the time at the concerts and festivals I work. Entry becomes consent. Something like this, with additional wording about the overhead flying...

CROWD RELEASE

Blue Ridge Big  Posted at 2017-8-27 11:31
I would think that you would need to post a crowd release notice at the jobsite entrances as well. Add a paragraph to it stating that you and your company will not be held liable in the unlikely event of an accident, and safely fly over the workers as much as you need to. I see it all the time at the concerts and festivals I work. Entry becomes consent. Something like this, with additional wording about the overhead flying...

CROWD RELEASE

Awesome suggestion dude!

This post is a couple of months old. Mabou2, what did you end up doing in this situation? (Also, I would love to see your results!)

I've been researching this issue as I work for a construction company and I'm going to be doing aerial videography of our job sites. I have added release language to new-hire employee forms and our construction contracts with our customers and subcontractors. From what I've found, it isn't really necessary for employees, because as employees their image can appear in promotional and marketing materials without their express permission.

As far as flying over employees heads, I follow what TN Lone Wolf said above, "The answer I was given is that the drone must be laterally 1 foot away from people at any height if they aren't under cover." I don't fly directly over the head of any employees and all of our employees and anyone on the job site will be wearing a hard hat.

I would definitely get something in writing from the boss in charge about the"mission".

Hi Guys, the shoot went well.  It turned out that this first shoot for the client was over a mostly empty field.  There were just four guys in graders and bulldozers on a 93 acre lot.  The edited video came out really nice, but at this point I am not allowed to share it.  Hopefully soon.

Thanks again for all of your valuable input.  

Mabou2 Posted at 2017-11-3 19:14
Hi Guys, the shoot went well.  It turned out that this first shoot for the client was over a mostly empty field.  There were just four guys in graders and bulldozers on a 93 acre lot.  The edited video came out really nice, but at this point I am not allowed to share it.  Hopefully soon.

Thanks again for all of your valuable input.

I was going to chime in with the same suggestion as Labroides. I am doing a multi-part doco on a very large construction site of over 280 acres, and I do it on Sundays when there are very few people there. In my case, the object is to show progress on the site, and it is not necessary to have workers present. But inevitably there are a few, so I identify where they are first, then shoot them at an oblique angle to avoid being over them.

Who in the FAA gave a verbal approval?  Did you file for a waiver?

Mabou2 Posted at 2017-8-25 09:08
Hi Baer,   yep, I'm Part 107.

The only time you need a waiver from the FAA (to the best of my understanding) is if you are flying over people who have no connection to the project.  For example, flying over a music festival.  The festival operators have hired you, but the people on the ground are their guests and not connected to the flight operation.

I think your interpretation of 107 is wrong..