Insight

Drones: What Legal Issues Should You Be Thinking About?

Issues like product liability, FAA compliance, privacy, and IP surround the use of drones for personal and business use.

Drone Laws Rapidly Changing
RW

Rachel Constantino-Wallace, John Roche, and John Wechkin

June 29, 2017 10:31 AM

Unmanned aerial vehicles (UAVs), commonly known as drones, have the potential to reshape commerce in ways that have not been seen since the early days of the Internet. Unsurprisingly, this potential is likely to draw interest from companies that have little to no experience with aviation or drones into the market by manufacturing drones, their components, or the software that they use. Counsel for these companies are likely to be asked about the legal implications of using drones, including product liability, privacy, intellectual property, and other legal issues. Also, the issues are not limited to drones—many of the issues apply to autonomous land and water vehicles as well.

Product Liability

Making a product safer is the best way to reduce product liability risks. During product development, companies that manufacture UAVs should develop a comprehensive safety program in which engineers think critically about the ways the product could cause harm and how to redesign the product to reduce or eliminate that harm. If a design can do that, a company should make the change, if possible. If it is impractical to do so, the company should document the reasons why.

There are some products and product features that can’t be made safer through design changes.

For those products, there are a number of ways to reduce risk. These can include:

  • Providing warnings that identify the risk and explain how to avoid it;
  • Obtaining product liability insurance;
  • Identifying and following relevant industry standards;
  • Obtaining contractual indemnification from suppliers and distributors; and
  • Including contractual limitations of liability for losses other than personal injury.

FAA Compliance

The Federal Aviation Administration (FAA) has issued new regulations directed specifically to small UAVs (those weighing less than 55 pounds). The regulations establish operational limitations for the commercial use of UAVs and create requirements related to registration and pilot qualifications, among other things. For manufacturers, understanding the FAA regulations is critical to ensuring that products can be used in a lawful manner. For operators, compliance with FAA regulations is required to keep commercial activities aloft.

Privacy

Drones that collect data linked to particular people (e.g., videos, photographs, addresses, email addresses) can create privacy issues. The Federal Trade Commission (FTC) regulates false claims related to privacy as part of its mandate to regulate unfair and deceptive business practices.

A privacy policy mitigates the risk of FTC enforcement action by ensuring that consumers have accurate information about (1) the purpose of data collection; (2) the types of data collected; (3) data retention and de-identification policies; (4) whether you intend to share the data with third parties and, if so, examples of those entities; and (5) the process for submitting privacy complaints, concerns, and questions.

Intellectual Property

As a result of the recent explosion in the popularity of drones, the intellectual property landscape is in a state of flux, particularly in the area of patents. Drone manufacturers are likely to encounter two separate patent issues: how to patent their own products and whether they can sell their products in light of another company’s patent.

Companies attempting to patent their products should know that they can patent technology that is not obvious and that qualifies as patentable subject matter. This includes hardware or software a company creates that did not exist previously, but also includes non-obvious combinations of off-the-shelf technology and associated customizations. Be aware that the United States is a “first to file” jurisdiction, so in the fast-moving UAV technology space, companies should plan to file patent applications sooner rather than later.

If a company realizes that the product it plans to sell is covered by another company’s patent, it has three options: seek a license from the patent holder, attack the enforceability of the patent, or “design around” the patent. Enforceability can be attacked on several grounds, including obviousness (the patented technology was an obvious, non-innovative extension of existing technology) and subject matter (technology that was patentable when a patent was issued may not still be patentable). Designing around another company’s patents can have a double benefit of avoiding liability, and for innovative designs, creating new intellectual property that adds to the company’s value and power in the marketplace.

The legal landscape in this area is rapidly changing, so businesses entering the UAV space should look to experienced legal counsel and professionals to help them understand the issues.

Related Articles

Uninsured Flying Objects


by Claire O'Rourke, Laura Beth Cohen, and Marialuisa S. Gallozzi

As drones and other “unmanned aerial vehicles” increasingly crowd the skies, the law—and insurance policies—will have to figure out how best to bring them back safely to terra firma.

Insurance Regulations for Drones

Trending Articles

2025 Best Lawyers Awards Announced: Honoring Outstanding Legal Professionals Across the U.S.


by Jennifer Verta

Introducing the 31st edition of The Best Lawyers in America and the fifth edition of Best Lawyers: Ones to Watch in America.

Digital map of the United States illuminated by numerous bright lights

Unveiling the 2025 Best Lawyers Awards Canada: Celebrating Legal Excellence


by Jennifer Verta

Presenting the 19th edition of The Best Lawyers in Canada and the 4th edition of Best Lawyers: Ones to Watch in Canada.

Digital map of Canadathis on illuminated by numerous bright lights

Legal Distinction on Display: 15th Edition of The Best Lawyers in France™


by Best Lawyers

The industry’s best lawyers and firms working in France are revealed in the newly released, comprehensive the 15th Edition of The Best Lawyers in France™.

French flag in front of country's outline

Announcing the 13th Edition of Best Lawyers Rankings in the United Kingdom


by Best Lawyers

Best Lawyers is proud to announce the newest edition of legal rankings in the United Kingdom, marking the 13th consecutive edition of awards in the country.

British flag in front of country's outline

Announcing the 16th Edition of the Best Lawyers in Germany Rankings


by Best Lawyers

Best Lawyers announces the 16th edition of The Best Lawyers in Germany™, featuring a unique set of rankings that highlights Germany's top legal talent.

German flag in front of country's outline

Prop 36 California 2024: California’s Path to Stricter Sentencing and Criminal Justice Reform


by Jennifer Verta

Explore how Prop 36 could shape California's sentencing laws and justice reform.

Illustrated Hands Breaking Chains Against a Bright Red Background

Celebrating Excellence in Law: 11th Edition of Best Lawyers in Italy™


by Best Lawyers

Best Lawyers announces the 11th edition of The Best Lawyers in Italy™, which features an elite list of awards showcasing Italy's current legal talent.

Italian flag in front of country's outline

Combating Nuclear Verdicts: Empirically Supported Strategies to Deflate the Effects of Anchoring Bias


by Sloan L. Abernathy

Sometimes a verdict can be the difference between amicability and nuclear level developments. But what is anchoring bias and how can strategy combat this?

Lawyer speaking in courtroom with crowd and judge in the foreground

Things to Do Before a Car Accident Happens to You


by Ellie Shaffer

In a car accident, certain things are beyond the point of no return, while some are well within an individual's control. Here's how to stay legally prepared.

Car dashcam recording street ahead

The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery


by Elizabeth M. Midgley and V. Christopher Potenza

The New York State Legislature recently went about updating certain wrongful death provisions and how they can be carried out in the future. Here's the latest.

Red tape blocking off a section of street

Tampa Appeals Court ‘Sends Clear Message,” Ensuring School Tax Referendum Stays on Ballot


by Gregory Sirico

Hillsborough County's tax referendum is back on the 2024 ballot, promising $177 million for schools and empowering residents to decide the future of education.

Graduation cap in air surrounded by pencils and money

Find the Best Lawyers for Your Needs


by Jennifer Verta

Discover how Best Lawyers simplifies the attorney search process.

A focused woman with dark hair wearing a green top and beige blazer, working on a tablet in a dimly

Key Developments and Trends in U.S. Commercial Litigation


by Justin Smulison

Whether it's multibillion-dollar water cleanliness verdicts or college athletes vying for the right to compensation, the state of litigation remains strong.

Basketball sits in front of stacks of money

Is Premises Liability the Same as Negligence?


by Jeremy Wilson and Taylor Rodney Marks

In today's age, we are always on the move, often inhabiting spaces we don't own. But what happens when someone else's property injures you or someone you know?

A pair of silhouetted legs falling down a hole with yellow background

Woman on a Mission


by Rebecca Blackwell

Baker Botts partner and intellectual property chair Christa Brown-Sanford discusses how she juggles work, personal life, being a mentor and leadership duties.

Woman in green dress crossing her arms and posing for headshot

Best Lawyers Celebrates Women in the Law: Ninth Edition


by Alliccia Odeyemi

Released in both print and digital form, Best Lawyers Ninth Edition of Women in the Law features stories of inspiring leadership and timely legal issues.

Lawyer in green dress stands with hands on table and cityscape in background