Monday, 3 February 2014

A Lawyer's Advice on Drones and UAVs


The ability to remotely observe areas otherwise inaccessible due to cost, noise, or physical dangers makes drones - also called unmanned aerial vehicles or UAVs - a remarkable technology. However, privacy concerns as well as the possible danger of uncontrolled UAVs causing personal injury or property damage due to loss of signal make this a new area for the application of existing laws as well as the opportunity for new laws to be crafted. Both manufacturers and users of drones/UAVs/UASs should be aware of the legal issues applicable to their operations, and plan for uncertain application of laws with insurance, legal compliance, and risk reduction policies.


What Laws and Regulations Apply to Drone/UAV Use?


Traditional laws of tort such as invasion of privacy likely apply to drone use, but the forthcoming FAA regulations on commercial use of drones may trigger the doctrine of federal preemption. Basically, if the FAA regulation is specific enough the FAA regulation may displace traditional law, possibly including local ordinances and state law. This will probably produce legal uncertainty among both lawyers and judges for a while. While every venture entails risk, in a new frontier such as in drone law there can be unexpected legal applications of law that will be surprising.

For example, assume the Chicago Police Department decides to use a drone to scan the lakefront area for gang activity. Does this violate the privacy rights of the sunbathers? It may depend on the coming FAA regulations, not just Illinois' law on drones or on traditional tort law principles. What about the use of drones in mining or agriculture, for instance? Perhaps a local zoning ordinance bans the use of drones. But if the FAA commercial use regulations expressly allow such a use, a federal court may invalidate the application of that local ordinance, and allow drone use in the mine or on the farm.
 

Finally, the product of your use of the drone may be an issue for which you need legal advice. For one example, filmmakers using drones need copyright protection for the visual images, and may need work-for-hire documents to be signed by the drone operator to clarify who owns the copyright. Another example might be an architect using a drone to filming aerial views of their work product. What if a competitor tries to use that film (perhaps stolen from a website) and pretends they designed the building? Better call a lawyer.


What Laws and Regulations Apply to Drone/UAV Manufacturing and Distribution?
 

In addition to learning the latest local and FAA regulations on their use, manufacturers and distributors need the same legal guidance that any commercial enterprise needs. If a company wants to recruit talent, a lawyer with employment law experience can help draft and enforce employment agreements, non-disclosure agreements (NDAs), and non-compete agreements to protect your trade secrets. If the products require the use of components from suppliers, a lawyer can help draft and enforce commercial contracts, possibly with arbitration agreements to avoid the cost and public glare of a court lawsuit. And to be especially smart, it would be wise to be proactive and protect your business's intellectual property after expending significant sums of money, time, and effort developing technology, products, and a recognized brand through the use of patents, trademarks, and possibly copyright protections such as with computer code.
 

A Word About Insurance Coverage

Finally, whether you are making or using drones, there is the risk of personal injury and property damage. It would be wise to obtain insurance coverage that specifically applies to your operations, use, or product. It also seems likely that there will be disputes about what is, and what is not, covered under a particular insurance policy. If an incident and/or claim occurs and the insurance company balks at protecting you or paying the claim, you will need to obtain legal help to defend the lawsuit, and also to file a lawsuit to try to force the insurance company to pay for the legal costs and the liability exposure through a special kind of lawsuit called a declaratory judgment.
Jeffrey Antonelli
For further information and advice related to drone/UAV law please contact: 
Antonelli Law Ltd.
100 North La Salle Street
Suite 2400
Chicago, IL 60602
Tel: (312) 201-8310
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