Court rules in favor of commercial photography

[Rich QR]

It is slightly confusing because in most places NPS bans all sUAS operations without a permit, and generally only issues permits for commercial work, but presumably there have been at least some cases where NPS issued free permits for non-commercial activities.

I don't believe the lawsuit in question mentioned drones or flying. So consider only ground-based photography/cinematography for a moment.

The NPS allows visitors to take still photos freely and without a permit as long as they are doing so from a place that the public is generally allowed and they aren't having undue impact on the Park. The problem is that their policy required a permit for any commercial motion pictures or video, even a YouTuber using an iPhone for a monetized video. But non-commercial filming/video was allowed as long as it didn't involve models, sets, or inordinate impacts on the Park.

The court said the NPS couldn't require a permit for commercial filming if the same filming wouldn't have required a permit if it had been non-commercial.

The decision was based on the idea that restricting only commercial filming would have an unreasonable impact on the commercial press, a violation of the First Amendment's saying Congress can't abridge freedom of the press.

 

[Ray Dunakin]

No, it's not what you said, or what you are still saying, and that's been clearly explained in several posts above. Not being able to sell material unless you are Part 107 certified (except material originally acquired during recreational flight) is simply a consequence of existing law (codified by the FAA - not created by the FAA) that requires certification for all non-recreational flying, in that the intent to take photos and videos for commercial purposes unambiguously takes the flight out of the recreational exception to Part 107. The law itself addresses only the purpose of the flight, and only purely recreational flight is exempt from the requirements.

And to clarify further, the Park Service issue is unrelated since NPS doesn't control the airspace - only what you do on the land that it controls. The ruling simply says that NPS cannot charge a fee for commercial filming - since it doesn't charge for non-commercial filming. It is slightly confusing because in most places NPS bans all sUAS operations without a permit, and generally only issues permits for commercial work, but presumably there have been at least some cases where NPS issued free permits for non-commercial activities.

Let me try to explain this one more time... In the court case against the National Park Service, the NPS was requiring permits and fines for professional photographers but not for non-professionals. So you could have two people doing the EXACT SAME THING (taking photos or video in the park), except that one of them is making money from it. Only the one doing it professionally would get hit with permits and fees.

The court said that is wrong.

When it comes to drones, the FAA is doing what the NPS was doing. Two separate people doing the EXACT SAME THING (taking photos or video via drone) are treated differently, simply because one of them makes money from it.

This has nothing to do with the NPS restrictions on drones.

It's purely about the government arbitrarily imposing restrictions and fees on one group of people (pros) and not on another group (amateurs), when both groups are doing the EXACT SAME THING.

 

[sar104]

I don't believe the lawsuit in question mentioned drones or flying. So consider only ground-based photography/cinematography for a moment.

The NPS allows visitors to take still photos freely and without a permit as long as they are doing so from a place that the public is generally allowed and they aren't having undue impact on the Park. The problem is that their policy required a permit for any commercial motion pictures or video, even a YouTuber using an iPhone for a monetized video. But non-commercial filming/video was allowed as long as it didn't involve models, sets, or inordinate impacts on the Park.

The court said the NPS couldn't require a permit for commercial filming if the same filming wouldn't have required a permit if it had been non-commercial.

The decision was based on the idea that restricting only commercial filming would have an unreasonable impact on the commercial press, a violation of the First Amendment's saying Congress can't abridge freedom of the press.

Right - that makes more sense. I read the article in the context of aerial videography and failed to notice that it was not actually about that. So it may or may not have any impact on the fees that they charge for aerial work.

 

[sar104]

Let me try to explain this one more time... In the court case against the National Park Service, the NPS was requiring permits and fines for professional photographers but not for non-professionals. So you could have two people doing the EXACT SAME THING (taking photos or video in the park), except that one of them is making money from it. Only the one doing it professionally would get hit with permits and fees.

The court said that is wrong.

When it comes to drones, the FAA is doing what the NPS was doing. Two separate people doing the EXACT SAME THING (taking photos or video via drone) are treated differently, simply because one of them makes money from it.

This has nothing to do with the NPS restrictions on drones.

It's purely about the government arbitrarily imposing restrictions and fees on one group of people (pros) and not on another group (amateurs), when both groups are doing the EXACT SAME THING.

It doesn't matter how many times you explain your incorrect reasoning - it's still incorrect. The law does not require certification to make money from taking photos or video, it requires certification to fly non-recreationally.

 

[gajman]

That's the point. There is no reason why a person using a drone for photography should be treated differently depending on whether or not they are making money off their photography. As it is now, I can shoot all the photos and video I want with my drone but the FAA regulations effectively prohibit me from selling any of my work.

Right.

 

[Ray Dunakin]

It doesn't matter how many times you explain your incorrect reasoning - it's still incorrect. The law does not require certification to make money from taking photos or video, it requires certification to fly non-recreationally.

You're arguing whether chickens come from eggs, or eggs come from chickens.

The effect is the same. If you're making money from it, you're doing it "non-recreationally" (according to the FAA).

 

[MavicAir2Marc]

You're arguing whether chickens come from eggs, or eggs come from chickens.

The effect is the same. If you're making money from it, you're doing it "non-recreationally" (according to the FAA).

Incorrect, you can take a video while flying recreationally, then someone comes around and wants to buy it from you, that is completely fine. The difference is the initial intent of the flight at the outset. If you start out to sell that content, then it is Part 107. If you're taking vacation pictures and someone wants to buy it later, that is totally within recreational flying and doesn't require a certificate.

 

[Rich QR]

It's purely about the government arbitrarily imposing restrictions and fees on one group of people (pros) and not on another group (amateurs), when both groups are doing the EXACT SAME THING.

But the FAA's restrictions are aimed at commercial piloting, not at photography. They have a long-standing principle that commercial pilots are held to a higher standard than those flying recreationally, and many airline passengers prefer it that way. Most state DMVs have a similar division between commercially licensed drivers and non-commercial.

Does the distinction between commercial and non-commercial piloting create an unconstitutional infringement on the press? Should all the sky choppers operated by the news organizations be exempt from getting commercial pilots licenses? Perhaps someday a court will say so, but I doubt it.

 

[Ray Dunakin]

Incorrect, you can take a video while flying recreationally, then someone comes around and wants to buy it from you, that is completely fine. The difference is the initial intent of the flight at the outset. If you start out to sell that content, then it is Part 107. If you're taking vacation pictures and someone wants to buy it later, that is totally within recreational flying and doesn't require a certificate.

You're still missing the point. If I'm flying with the intent to make money from my videos, why should I be treated any differently from someone doing the exact same thing "recreationally"?

 

[Ray Dunakin]

But the FAA's restrictions are aimed at commercial piloting, not at photography. They have a long-standing principle that commercial pilots are held to a higher standard than those flying recreationally, and many airline passengers prefer it that way. Most state DMVs have a similar division between commercially licensed drivers and non-commercial.

Does the distinction between commercial and non-commercial piloting create an unconstitutional infringement on the press? Should all the sky choppers operated by the news organizations be exempt from getting commercial pilots licenses? Perhaps someday a court will say so, but I doubt it.

Then the problem is the FAA's failure to differentiate between a guy flying a small unmanned drone at very low altitude vs a commercial pilot flying a manned aircraft.

 

[MavicAir2Marc]

If you're making money from it, you're doing it "non-recreationally" (according to the FAA).

This is not the case at all. Money has nothing to do with it.

 

[HoozierDroneDaddy]

Incorrect, you can take a video while flying recreationally, then someone comes around and wants to buy it from you, that is completely fine. The difference is the initial intent of the flight at the outset. If you start out to sell that content, then it is Part 107. If you're taking vacation pictures and someone wants to buy it later, that is totally within recreational flying and doesn't require a certificate.

This was brought up a couple of years back. If a pilot had repeated occurrences claiming the photos were taken as non-commercial flights, but repeatedly sold the photos, would he be violating 107. The FAA rep stated that a one time occurrence could be accepted, but repeated occurrences would indicate the intent was actually commercial as the pilot continued to repeat the offense.

 

[HoozierDroneDaddy]

It doesn't matter how many times you explain your incorrect reasoning - it's still incorrect. The law does not require certification to make money from taking photos or video, it requires certification to fly non-recreationally.

Non-recreationally can be making money, or in the furtherance of a business..

 

[Rich QR]

Then the problem is the FAA's failure to differentiate between a guy flying a small unmanned drone at very low altitude vs a commercial pilot flying a manned aircraft.

The FAA definitely does make that distinction. A commercial drone pilot can't use his Part 107 license to fly a Cessna commercially.

Not only does the FAA make distinctions based on aircraft type and performance, they also make distinctions based on commercial vs. recreational at various levels. They have a long history of doing so, and as far as I know it has never been ruled to be an unconstitutional infringement of freedom of the press.

 

[Texbow]

IMHO I still say that Drones under a certain weight (all recreational types, ex: under 10 lbs)should be exempt from any commercial regulations. But ALL drones should be regulated for the safe use of airspace. I feel that the FAA should not be burdened with responding to a complaint that Joe Blow used his Mavic Pro to make a Youtube video to raise money for that little league team. Total waste of resources and a distraction to managing the safe use of airspace. The fact that your drone has a camera or gas sensor or another device should be of no concern to the FAA. Some will claim that the FAA does not care now but even the most uninformed know that simply flying a drone without these has no commercial capabilities. We can dance around the current regulations all we want but having the FAA regulating "intent" is nuts to me. Some will say that the FAA is not interested in your Youtube videos (BS). They may not be until someone files a complaint. If any FAA employee spends one minute even thinking about Joe Blow's "intent" it's a waste of resources. We have enough legitimate airspace safety concerns with drones flying in places they should not and altitudes that should keep the FAA busy.

 

[offtheback]

No, you have misunderstood the applicable law and your statement is almost completely incorrect. An act of Congress (Public Law 112-95, Title III, Subtitle B) says that you need a license to operate a sUAS non-recreationally. The FAA regulations merely codify that law.

Neither the law nor the regulations mention commercial use and, as pointed out above, it's not the sale of your photos or videos that is regulated - what's regulated is the non-recreational nature of the flight when you acquired those materials. As a result, you can, in fact, sell such material without a Part 107 certification if the original intent of the flight was recreational. What you cannot do (with a few exceptions) is fly in the first place if the purpose of the flight is not purely recreational. Commercial intent would just be a subset of non-recreational uses.

You've been MIA.Hope everything is alright with you+family.

 

[sar104]

Non-recreationally can be making money, or in the furtherance of a business..

Yes, and it's even broader than that - for example volunteer work is also non-recreational under this law.

 

[sar104]

You've been MIA.Hope everything is alright with you+family.

All is fine - thank you. I've been here, just avoiding posting. This thread is a prime example of the kind of unsatisfying debate that I tend to get embroiled in. It doesn't seem to matter how clear and obvious the issue is - there's always someone who will argue against all reason.

 

[dirkclod]

It doesn't seem to matter how clear and obvious the issue is - there's always someone who will argue against all reason.

And you ain’t lying.?

 

[vfrailing]

Not to be picky, but the Supreme Court was not involved. It was a Fed judge in D.C. making the ruling. Still, it's a winner all around for the 1st Amendment, and a blow to complete governmental control. Go shoot some video!!!

Agree! I hope this sets precedent for more reasonable guidelines in parks. Particularly National Parks