Got a call from FAA today...do I really need my Part 107?

[zlek131]

Background: I am 100% recreational/hobbyist aerial photographer who has been flying for over 3 years now. I fly for the satisfaction of taking a photo rather than the joy of flying a drone. Although I don't have my part 107 certification, I am very knowledgeable of the laws/regulations and fly by the book, given I have studied for the test just haven't taken it at this point in time. I can say with 100% accuracy that I have not charged/billed/accepted any form of payment/reward for any of my work. At the same time my photos have been featured many times on local news, websites, social media and hopefully an upcoming publication - each time the photo being credited to my name and again, all 100% free of charge. I have also given numerous photos away (free of charge) to random people contacting me and wanting to print one of my images to hang it on their wall. I feature my photography hobby on my website/Instagram with a pure hobby disclaimer.

The call: Today I received a call from a local FAA office, asking me if I was 107 certified. Evidently someone has reported me to the FAA, my guess is someone local who is charging for their aerial photography and not appreciating the fact that I give mine away for free. It was a very friendly and honest phone conversation. After informing the FAA employee of what I sated above, I was advised that I will need to get my part 107 license in order to continue what I have been doing all along. I was told that even though I have not charged/made a single penny for any of my work and/or accepted any sort of reward/payment, "my name has received credit for it", especially that part where my photos were featured on local news with photo credit given to my name.

Question: Based on what I said above, do I really need to get my Part 107 certification? I am not going to argue with the FAA and I will get certified anyway, but wanted to get opinion from this forum as I know we have a lot of knowledgeable members here.

Thank you in advance! Matt

 

[sancap]

The FAA may be thinking that you may intend to make money on your images in the future.

Why not get a 107 and call it good? With all the interest you claim to have with your images you should be making money.

 

[dirkclod]

I’m not but sure @BigAl07 can tell ya.
As far as I’m concerned having a part 107 isn’t necessary
to post your pictures unless your getting paid or promoting
yourself.

 

[zlek131]

The FAA may be thinking that you may intend to make money on your images in the future.

Why not get a 107 and call it good? With all the interest you claim to have with your images you should be making money.

I would have to disagree on the "you should be making money" part. Typically hobbies get ruined when money gets involved, not to mention it's no longer a hobby when you are getting paid to do it. I have 8-5 job at which I work very hard and don't need any more money at this time. To your other point, I do agree to just getting a 107 and calling it good. Thanks for your feedback.

 

[zlek131]

I’m not but sure @BigAl07 can tell ya.
As far as I’m concerned having a part 107 isn’t necessary
to post your pictures unless your getting paid or promoting
yourself.

That's what I thought as well but.....

 

[MS Coast]

That's what I thought as well but.....

I'll defer to BigAl, but I'm sure that money and self promotion aren't the only criteria. As I understand it, if there's any use of a photo that has value (even non-monetary value, then a commercial license is required. One of the reasons I got my 107 certificate is to be able to give photos and videos to a non-profit nature center.

 

[zlek131]

I'll defer to BigAl, but I'm sure that money and self promotion aren't the only criteria. As I understand it, if there's any use of a photo that has value (even non-monetary value, then a commercial license is required. One of the reasons I got my 107 certificate is to be able to give photos and videos to a non-profit nature center.

That’s good info on the self promotion part, as me receiving credit for the photos would qualify as self promotion

 

[LoudThunder]

You may have studied for the Part 107 License, but I do not think you spent much time studying to be a Recreational Pilot. I refer you to the FAA Web Page "Recreational Flyers & Modeler Community-Based Organizations"

https://www.faa.gov/uas/recreational_fliers/

Pay particular attention to the NOTE under the paragraph "What is a Recreational Flight?"

"Goodwill or other non-monetary value can also be considered indirect compensation."

In you posting you said, "I have not charged/billed/accepted any form of payment/reward for any of my work. At the same my photos have been featured many times on local news, websites, social media and hopefully an upcoming publication - each time the photo being credited to my name and again all 100% free of charge."

Don't you think that giving you on screen credit is a form of Payment in Goodwill? If you were not given credit, would you be so generous with your videos?

Get your part 107 and then there will be no question of "Payment-in-Kind…"

 

[MAvic_South_Oz]

From what I've read here many times, you can give services away for free, but . . . if it's used in any commercial way, then it's considered part 107 is needed.

The only variation I have read is if you fly purely recreational when you actually TAKE the photo, then later (no defined period) there is an opportunity to make $, or give it away to someone to use in the operation of a business.

News services, some business websites etc would fall into that for sure, giving to private persons to hang in a home, not so . . . if they printed them and sold them online (with or without your knowledge) it could be shaky ground.

The other thing you mentioned "upcoming publication" is certainly going to fall into commercial use, paid or not.

 

[zlek131]

Good point, but at the same time publications/news outlets insist on crediting the photo as they don’t want you to turn around and sue them for any type of copy rights violations. Normally it’s me sending in a photo, them replying and asking (in writing) for my permission for them to use the photo with credit. To be honest, me sending in a photo and seeing on the news that night (with or without credit) is really more of self motivation to further grow my photography skills rather than self promotion. But, I won’t deny - it does feel somewhat rewarding to also see your name by your photo. I see your point. Like I said, I will go ahead and get the 107 cert, after all I already studied for it to make sure I know the regulations and keep things safe.

 

[sar104]

In my opinion the FAA is probably overreaching here, but it is the closest thing to a grey area in the recreational exemption. The wording of the relevant limitation, §44809 (a) (1) is "The aircraft is flown strictly for recreational purposes.".

Note that it does not say that the recreational purpose has to be flying, and the FAA has previously confirmed, on a web page that no longer exists, that flying for the purpose of a different recreational activity is allowable. The current FAA website guidance is this:

Non-recreational purposes include things like taking photos to help sell a property or service, roof inspections, or taking pictures of a high school football game for the school's website. Goodwill or other non-monetary value can also be considered indirect compensation. This would include things like volunteering to use your drone to survey coastlines on behalf of a non-profit organization. Recreational flight is simply flying for fun or personal enjoyment.​

Those are all clearly non-recreational, and the volunteer bit is important as it always disqualifies a flight as recreational. But your use case doesn't seem to fall into any of those categories, and "receiving credit", i.e. being acknowledged as the source of a photo that you took as part of your photography hobby, is really not a valid argument. And, in relation to the point about material used and credited by news organizations, the FAA has previously addressed that explicitly in a 2015 memo and held it to be consistent with the recreational definition.

So in conclusion, I think that the advice was incorrect, but I'm not sure it's worth contesting. I originally took the Part 107 qualification precisely to avoid these kinds of issues.

 

[zlek131]

In my opinion the FAA is probably overreaching here, but it is the closest thing to a grey area in the recreational exemption. The wording of the relevant limitation, §44809 (a) (1) is "The aircraft is flown strictly for recreational purposes.".

Note that it does not say that the recreational purpose has to be flying, and the FAA has previously confirmed, on a web page that no longer exists, that flying for the purpose of a different recreational activity is allowable. The current FAA website guidance is this:

Non-recreational purposes include things like taking photos to help sell a property or service, roof inspections, or taking pictures of a high school football game for the school's website. Goodwill or other non-monetary value can also be considered indirect compensation. This would include things like volunteering to use your drone to survey coastlines on behalf of a non-profit organization. Recreational flight is simply flying for fun or personal enjoyment.​

Those are all clearly non-recreational, and the volunteer bit is important as it always disqualifies a flight as recreational. But your use case doesn't seem to fall into any of those categories, and "receiving credit", i.e. being acknowledged as the source of a photo that you took as part of your photography hobby, is really not a valid argument. And, in relation to the point about material used and credited by news organizations, the FAA has previously addressed that explicitly in a 2015 memo and held it to be consistent with the recreational definition.

So in conclusion, I think that the advice was incorrect, but I'm not sure it's worth contesting. I originally took the Part 107 qualification precisely to avoid these kinds of issues.

Thank you so much for your very helpful feedback.

 

[zlek131]

From what I've read here many times, you can give services away for free, but . . . if it's used in any commercial way, then it's considered part 107 is needed.

The only variation I have read is if you fly purely recreational when you actually TAKE the photo, then later (no defined period) there is an opportunity to make $, or give it away to someone to use in the operation of a business.

News services, some business websites etc would fall into that for sure, giving to private persons to hang in a home, not so . . . if they printed them and sold them online (with or without your knowledge) it could be shaky ground.

The other thing you mentioned "upcoming publication" is certainly going to fall into commercial use, paid or not.

Thank you for the valuable info!

 

[Wade L.]

I think your history works against you in this case. If you were flying recreationally, took a photo or video with your drone, posted it your social media, and you later gave someone permission to publish your work for the first time, it’s easy to argue that the flight was originally intended as a recreational flight and therefore not subject to Part 107. However, if you have a documented history of having your work published by third parties, then the FAA reasonably assumes (based on the pattern of publication) that you intend to allow future work to be published and therefore the flights that produce those works are subject to Part 107. Intent is the driver here, and monetary gain alone is not what determines whether or not a flight falls under Part 107 rules. Taking photos/videos for the benefit of anyone other than yourself, regardless of whether or not you are compensated for your work, is a Part 107 operation.

 

[zlek131]

I think your history works against you in this case. If you were flying recreationally, took a photo or video with your drone, posted it your social media, and you later gave someone permission to publish your work for the first time, it’s easy to argue that the flight was originally intended as a recreational flight and therefore not subject to Part 107. However, if you have a documented history of having your work published by third parties, then the FAA reasonably assumes (based on the pattern of publication) that you intend to allow future work to be published and therefore the flights that produce those works are subject to Part 107. Intent is the driver here, and monetary gain alone is not what determines whether or not a flight falls under Part 107 rules. Taking photos/videos for the benefit of anyone other than yourself, regardless of whether or not you are compensated for your work, is a Part 107 operation.

Hard for me to debate your very accurate and solid point. I am starting to realize that it’s not about getting paid (or not), but rather what happens to the 100% free photo afterwards. If it ends up on the news. It’s not considered recreational anymore. I should have my part 107 by next Friday. Thanks for your feedback!

 

[sar104]

Hard for me to debate your very accurate and solid point. I am starting to realize that it’s not about getting paid (or not), but rather what happens to the 100% free photo afterwards. If it ends up on the news. It’s not considered recreational anymore. I should have my part 107 by next Friday. Thanks for your feedback!

Except if you take a look at the memo that I linked to above, that's clearly not the case.

 

[dirkclod]

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[sar104]

I think your history works against you in this case. If you were flying recreationally, took a photo or video with your drone, posted it your social media, and you later gave someone permission to publish your work for the first time, it’s easy to argue that the flight was originally intended as a recreational flight and therefore not subject to Part 107. However, if you have a documented history of having your work published by third parties, then the FAA reasonably assumes (based on the pattern of publication) that you intend to allow future work to be published and therefore the flights that produce those works are subject to Part 107. Intent is the driver here, and monetary gain alone is not what determines whether or not a flight falls under Part 107 rules. Taking photos/videos for the benefit of anyone other than yourself, regardless of whether or not you are compensated for your work, is a Part 107 operation.

Intent to allow something in the future is irrelevant to the determination of whether the flight is recreational, because future use of material from a recreational flight is always allowed to be used. That's how the law is written. Specific intent to use material for some other purpose is what makes the flight non-recreational in the first place.

Perhaps the question that you are getting at is: what happens if you have good reason to believe that someone will ask to use the hobby photos/video? And what happens if you work, as a result, becomes increasingly in demand? Does that make it no longer a hobby? It seems unreasonable to declare that you are no longer a recreational photographer just because your work attracts attention, unless you start charging for it in which case the pattern of monetization does cast doubt on the recreational intent.

 

[dirkclod]

Picture I just posted is way old but this screenshot is from now.

That make me a outlaw

 

[Big Bro]

All drone operators in the United States are required to operate under part 107 of the Code of Federal Regulations with one exception and that is recreational flyers that are following the requirement of (49 U.S.C. § 44809) In order to fly under this exception you must meet all the requirements of this section. You can't just make the claim that you are flying just for fun. You have to be following all the rules that apply to recreational flight.

Here is the catch, if you're not following all the rules for recreational flight, the exception is not valid and your responsibility falls back to the entire part 107 rules, which violations of this code potentially carry heavy fines.

Once the FAA starts approving CBO's (Community Based Organizations), the guidelines that these CBO's will be forces to make you follow in order to gain their FAA approval as a CBO, will only be more restrictive. Maybe more so than part 107.

Bottom line, any pilot with foresight needs to get his ducks in line and get their remote pilots license. IMHO it won't be that long before it's a requirement for all anyway!