Licensing amateur video for sale?

[HiKen51]

From what I've learned so far, it appears that there is no wiggle room when it comes to monetary compensation for any footage shot by a drone hobbyist. However my accountant, who is also a licensed small-aircraft (as in Cessna, not DJI) pilot, has suggested that there may be a bit of a gray area. I'm asking because a licensing agency has offered to market some of my footage, but so far I've told them I don't think that's possible since it was shot as a hobbyist.
Can anyone shed any further light on this?
My accountant's suggestion is that I did not shoot the video to sell, nor did I try to sell it, but I've simply been offered money for it afterward, therefore maybe it falls into a gray area that the regulations don't really address.

 

[MadValley]

The simplest thing is to just get your 107 certification. I don't think anybody in the FAA is going to compare the dates in your project metadata with the date your 107 certificate was issued. In the meantime, make sure you copyright all your stuff. You don't want something you posted out there turning up in the next Mercedes ad.

 

[Drclaw]

The simplest thing is to just get your 107 certification. I don't think anybody in the FAA is going to compare the dates in your project metadata with the date your 107 certificate was issued. In the meantime, make sure you copyright all your stuff. You don't want something you posted out there turning up in the next Mercedes ad.

How would u go about that?

 

[BigAl07]

From what I've learned so far, it appears that there is no wiggle room when it comes to monetary compensation for any footage shot by a drone hobbyist. However my accountant, who is also a licensed small-aircraft (as in Cessna, not DJI) pilot, has suggested that there may be a bit of a gray area. I'm asking because a licensing agency has offered to market some of my footage, but so far I've told them I don't think that's possible since it was shot as a hobbyist.
Can anyone shed any further light on this?
My accountant's suggestion is that I did not shoot the video to sell, nor did I try to sell it, but I've simply been offered money for it afterward, therefore maybe it falls into a gray area that the regulations don't really address.

Your accountant is "technically" correct. Data collected while flying as a hobbyist so long as it was purely a hobby flight can be sold at a later date. It's sort of a loophole but it's a dangerous one for sure. If it happens over and over I'd guess they "could" call your hand but fact of the matter is you fly as a hobbyist and someone wants to purchase some of your HOBBY footage.

SELL IT!!

 

[MadValley]

How would u go about that?

Go the FAA.gov website and follow the Part 107 instructions. There are also many threads on the forum about 107.

 

[Drclaw]

Go the FAA.gov website and follow the Part 107 instructions. There are also many threads on the forum about 107.

I mean copyrightinf your footage. Is that 107 as well?

 

[Qoncussion]

I mean copyrightinf your footage. Is that 107 as well?

Not at all. Everyone owns the *rights* to anything they produce, from their own footage - including the original footage itself. Placing a copyright on it has nothing to do with shooting commercial footage. It's just a way to protect yourself if someone steals and uses it for their own gain.

 

[toddellis]

if someone gives you money for it - you sold it - period. does that mean you're going to get caught? maybe, maybe not. but if the feds want to make an example out of you they're not going to care what your intent was when you took the footage, they're just going to care that you received compensation for it. if you want to sell your stuff - get your pt. 107.

 

[sar104]

if someone gives you money for it - you sold it - period. does that mean you're going to get caught? maybe, maybe not. but if the feds want to make an example out of you they're not going to care what your intent was when you took the footage, they're just going to care that you received compensation for it. if you want to sell your stuff - get your pt. 107.

Actually that's not correct. Intent is everything when it comes to 336 - recreational flight is defined by the purpose of the flight at the time, not by the subsequent use of any material arising from the flight. The FAA has clarified that more than once. That said, as @BigAl07 points out in post #4, making a habit of it would likely be problematic.

 

[toddellis]

i disagree. 336 is for "hobbyists" when you accept compensation of any kind, you are no longer a "hobbyist" according to the feds and their many, many lawyers. the FAA is taking a very broad view of "compensation". even if you are not compensated DIRECTLY, for example you take photos for free for your brother the realtor - then he puts them on HIS website and generates revenue - you need a 107 to be legal. same with a charity. same with a buddy giving you gas money to drive to their farm to shoot video. even if you put the photos on a USB drive and sell the drive, NOT the photos, you need a 107. you MIGHT be able to apply for an exemption of some kind, but i doubt it. again, maybe you won't get caught - sometimes i speed & don't get a ticket.

in 2014 the FAA came out with an "Interpretation of the Special Rule for Model Aircraft (336) that states, in part: Any operation not conducted strictly for hobby or recreation purposes could not be operated under the special rule for model aircraft. Clearly, commercial operations would not be hobby or recreation flights. Likewise, flights that are in furtherance of a business, or incidental to a person’s business, would not be a hobby or recreation flight. as of 2Q 2017 teh FAA is really cracking down. They are monitoring local TV stations looking for commercials with UAV footage. 107 pilots I know have been approached by the FAA and asked to show their papers. They are not playing games with this - and neither should you.

 

[UAVNV]

You have a good accountant. Yes you can fly on any private property with permission as a hobbist, it can be donated or sold.

edit: my personal suggestion is to not have any residual income or connection to the footage

 

[sar104]

i disagree. 336 is for "hobbyists" when you accept compensation of any kind, you are no longer a "hobbyist" according to the feds and their many, many lawyers. the FAA is taking a very broad view of "compensation". even if you are not compensated DIRECTLY, for example you take photos for free for your brother the realtor - then he puts them on HIS website and generates revenue - you need a 107 to be legal. same with a charity. same with a buddy giving you gas money to drive to their farm to shoot video. even if you put the photos on a USB drive and sell the drive, NOT the photos, you need a 107. you MIGHT be able to apply for an exemption of some kind, but i doubt it. again, maybe you won't get caught - sometimes i speed & don't get a ticket.

in 2014 the FAA came out with an "Interpretation of the Special Rule for Model Aircraft (336) that states, in part: Any operation not conducted strictly for hobby or recreation purposes could not be operated under the special rule for model aircraft. Clearly, commercial operations would not be hobby or recreation flights. Likewise, flights that are in furtherance of a business, or incidental to a person’s business, would not be a hobby or recreation flight. as of 2Q 2017 teh FAA is really cracking down. They are monitoring local TV stations looking for commercials with UAV footage. 107 pilots I know have been approached by the FAA and asked to show their papers. They are not playing games with this - and neither should you.

I'm not sure how you can disagree with the FAA's written legal interpretation, but your prerogative, I guess. They have removed (or perhaps just moved) the clearest statement on this from the FAA website, but here's a copy:

Dropbox - williams-afs-80 - (2015) legal interpretation.pdf

To quote the relevant section (III):

"Whether an individual taking pictures or videos or gathering other infmmation using a model aircraft under the section 336 carve-out could later sell those pictures, videos, or other information would depend on the person's original intentions in conducting the operation. If the individual takes the pictures or videos or gathers other information as part of a hobby or recreational activity, then a later decision to sell some or all of those pictures, videos, or other information would not change the character of the operation as part of a hobby or recreational activity that falls within the section 336 carve-out for model aircraft. No FAA authorization for that operation would be required.

However, if the individual is conducting the operation with the primary intention of obtaining pictures, videos, or other information to sell, then the operation is commercial in nature and not part of a hobby or recreational activity. As noted above, such operations currently would require an authorization from the FAA. Evidence that may indicate an individual's true intentions in conducting an operation may include the frequency with which pictures, videos, or other information collected using an unmanned aircraft is later resold. Operations that frequently result in pictures, videos, or other information that is sold to a third party may indicate that the operation is in fact commercial in nature notwithstanding the individual's claim of a hobby or recreational purpose. The FAA would have to consider each case on its own merits."​

 

[HiKen51]

I'm not sure how you can disagree with the FAA's written legal interpretation, but your prerogative, I guess. They have removed (or perhaps just moved) the clearest statement on this from the FAA website, but here's a copy:

Dropbox - williams-afs-80 - (2015) legal interpretation.pdf

To quote the relevant section (III):

"Whether an individual taking pictures or videos or gathering other infmmation using a model aircraft under the section 336 carve-out could later sell those pictures, videos, or other information would depend on the person's original intentions in conducting the operation. If the individual takes the pictures or videos or gathers other information as part of a hobby or recreational activity, then a later decision to sell some or all of those pictures, videos, or other information would not change the character of the operation as part of a hobby or recreational activity that falls within the section 336 carve-out for model aircraft. No FAA authorization for that operation would be required.
​

THANKS for this sar104--if I'm understanding your post correctly, the FAA is saying that if i shot the footage as a hobbyist, that does not preclude the possibility of selling it later, but that if I were to do that on a regular basis it would look like I wasn't actually doing it as a hobbyist.
If my understanding is correct, there should be no problem with selling this footage, because it definitely was done as a hobbyist--one of my first flights--a pure serendipity.

 

[sar104]

THANKS for this sar104--if I'm understanding your post correctly, the FAA is saying that if i shot the footage as a hobbyist, that does not preclude the possibility of selling it later, but that if I were to do that on a regular basis it would look like I wasn't actually doing it as a hobbyist.
If my understanding is correct, there should be no problem with selling this footage, because it definitely was done as a hobbyist--one of my first flights--a pure serendipity.

Yes - that derives directly from Public Law 112-95, Section 336 (the Special Rule) and its implementation in 14 CFR Part 101subpart E, both of which only address the requirement that the purpose of the flight was recreational, and say nothing about subsequent use of photos or video. So the FAA legal clarification in the memo that I linked to was not at all surprising - there really is no other consistent way to interpret the law on this. The fact that someone offers to buy your video at a later date obviously does not suddenly change the original purpose of the flight.

 

[BigAl07]

@sar104 has explained this perfectly. I just want to summarize a pinch.

So long as a flight is done within legal rules or CBO guidelines (which one depends on the intent of the flight) and there is no incident:

INTENT of the flight is what matters.
A) If you take off flying for hobby/recreation and you snap pictures or shoot some awesome video for your own enjoyment you are flying as a hobbyist. If you happen to capture something currency or news worthy and someone desires to acquire it at a later point that's a BONUS and perfectly legal to sell/distribute your data.

B) If you take off with the intention/hunch/notion of gathering data to give/sell/donate/barter to another person/company etc then your flight falls under Part 107 and you will be held accountable to those regulations (notice they are NOT guidelines).

While I fully understand that it would be next to impossible to go to court and "prove" your intent was not as you state (should the FAA come asking which is very RARE) should you have a track record of "Selling" your data their case would be much easier to prove against you.

Also take note that you can NOT mix & match Part 101 with Part 107 within the same flight. However your flight begins is how the flight must be executed through out. For instance you can't (or should I say shouldn't) take off within 5 miles of an airport with just Tower notification and then suddenly declare "Oh this is now a Part 107 flight so I can just keep flying here Commercially without an Airspace Authorization/Waiver". Also as a hobbyist you can fly at night with no other credentials but as a Part 107 you can't fly after Civil Twilight without a Daytime Waiver (~107.29) in your possession. So you can't claim hobbyist to fly at night and then "automatically" fly at night for non-hobby purposes since you're already in the air. We can't do that.