Media Use of UAS Memorandum

[Deleted member 114292]

I sent a link to this to the FAA.
==== My Question ====
Is this memo still valid?
Can a non Part 107 pilot still sell his photographs based on intention to anyone, not just the news media?

https://www.faa.gov/about/office_org/headquarters_offices/agc/practice_areas/regulations/interpretations/Data/interps/2015/Williams-AFS-80%20-%20(2015)%20Legal%20Interpretation.pdf

==== FAA Response ====
Good Morning,

The memo you attached references section 336 of Pub. L. 112-95. Section 336 was repealed and replaced in its entirety by Section 349 of the FAA Reauthorization Act of 2018 (Pub. L. 115-254). The Exception for Limited Recreational Operations of Unmanned Aircraft established by section 349 is codified at 49 U.S.C. 44809. The Exception allows a person to operate a small unmanned aircraft without specific certification or operating authority from the FAA if they adhere to a set of limitations. The first limitation is that the aircraft is flown strictly for recreational purposes.

Any operation that is not strictly recreational is governed under Part 107, and thus requires a Remote Pilot Certificate. You mentioned intent... Someone that sells pictures is not conducting a recreational operation. If the original intent was indeed recreational, there is nothing that precludes the operator from selling those photos when they are later operating under Part 107, but they certainly will need a Remote Pilot Certificate to conduct non-recreational operations.

Hopefully this provides some clarity.. You certainly may reach out to AGC directly for more specific clarification and any questions about AGC memos specifically: Regions and Centers.


Thank you for contacting the FAA's Unmanned Aircraft Systems (UAS) Support Center.

Please follow up with any further inquiries at [email protected]. Additional information is also available at Unmanned Aircraft Systems (UAS).

We appreciate your Feedback. Please select: UAS Safety and Integration Division AUS-400.
LL

 

[BigAl07]

Cliff's Notes:

It was a Guideline and it's now codified into Law by Section 349 of the FAA Reauthorization Act of 2018 (Pub. L. 115-254). Which merely regurgitates the things from With all the law changes,can I sell a photo taken for hobby purposes? into the current form.

 

[Deleted member 114292]

Not exactly it contradicts it. I read it as regardless of your intent, you need a part 107 to sell a photo.

"Someone that sells pictures is not conducting a recreational operation."

"there is nothing that precludes the operator from selling those photos when they are later operating under Part 107, but they certainly will need a Remote Pilot Certificate to conduct non-recreational operations."

 

[BigAl07]

You're missing the whole boat.

Someone who is flying recreationally and later determines the photo/video has value CAN indeed sell it. Someone who goes up with the intent to capture data to SELL is not recreational. You're not seeing the forest for the trees.

 

[BigAl07]

Here it's explained very basic and in an easy to understand way (from the other thread):

This is often confused because people think of the photograph as being commercial when the FAA has no rules about photographs or selling them.
It's not the photos that the FAA cares about, it's the flight.
If there was any offence, it would be unlicensed commercial flight, not selling photos.
But if the flight carried out in the past was completely legal, selling a photo in the future can't retrospectively make a legal flight, now illegal.

 

[Deleted member 114292]

You're missing the whole boat.

Someone who is flying recreationally and later determines the photo/video has value CAN indeed sell it. Someone who goes up with the intent to capture data to SELL is not recreational. You're not seeing the forest for the trees.

"Someone that sells pictures is not conducting a recreational operation." regardless of your intent.
"CAN indeed sell it." "those photos when they are later operating under Part 107,"

 

[BigAl07]

We'll just have to agree to disagree (and you're wrong).

 

[Deleted member 114292]

We'll just have to agree to disagree (and you're wrong).

We agree to disagree, but of course I think your wrong
Of course it's a completely moot point since the FAA has never even mentioned it.

 

[sar104]

I sent a link to this to the FAA.
==== My Question ====
Is this memo still valid?
Can a non Part 107 pilot still sell his photographs based on intention to anyone, not just the news media?

https://www.faa.gov/about/office_org/headquarters_offices/agc/practice_areas/regulations/interpretations/Data/interps/2015/Williams-AFS-80%20-%20(2015)%20Legal%20Interpretation.pdf

==== FAA Response ====
Good Morning,

The memo you attached references section 336 of Pub. L. 112-95. Section 336 was repealed and replaced in its entirety by Section 349 of the FAA Reauthorization Act of 2018 (Pub. L. 115-254). The Exception for Limited Recreational Operations of Unmanned Aircraft established by section 349 is codified at 49 U.S.C. 44809. The Exception allows a person to operate a small unmanned aircraft without specific certification or operating authority from the FAA if they adhere to a set of limitations. The first limitation is that the aircraft is flown strictly for recreational purposes.

Any operation that is not strictly recreational is governed under Part 107, and thus requires a Remote Pilot Certificate. You mentioned intent... Someone that sells pictures is not conducting a recreational operation. If the original intent was indeed recreational, there is nothing that precludes the operator from selling those photos when they are later operating under Part 107, but they certainly will need a Remote Pilot Certificate to conduct non-recreational operations.

Hopefully this provides some clarity.. You certainly may reach out to AGC directly for more specific clarification and any questions about AGC memos specifically: Regions and Centers.


Thank you for contacting the FAA's Unmanned Aircraft Systems (UAS) Support Center.

Please follow up with any further inquiries at [email protected]. Additional information is also available at Unmanned Aircraft Systems (UAS).

We appreciate your Feedback. Please select: UAS Safety and Integration Division AUS-400.
LL

Nice work following up on that, and I agree with your interpretation of the reply:

"If the original intent was indeed recreational, there is nothing that precludes the operator from selling those photos when they are later operating under Part 107..."​

That does, indeed, suggest that the response is saying that you could take pictures while flying recreationally and sell them later if you subsequently operated under Part 107. I suggest you request further clarification though, because that implication is (1) incorrect and, (2) makes no sense, because Part 107 is purely the certification required to fly non-recreationally - it isn't a license to sell photos.

 

[Deleted member 114292]

Nice work following up on that, and I agree with your interpretation of the reply:

"If the original intent was indeed recreational, there is nothing that precludes the operator from selling those photos when they are later operating under Part 107..."​

That does, indeed, suggest that the response is saying that you could take pictures while flying recreationally and sell them later if you subsequently operated under Part 107. I suggest you request further clarification though, because that implication is (1) incorrect and, (2) makes no sense, because Part 107 is purely the certification required to fly non-recreationally - it isn't a license to sell photos.

I think it's not about the photos but that if you get any sort of remuneration then it's not a recreational flight.
"Someone that sells pictures is not conducting a recreational operation."
That's what I was taught in my training. The example was free tickets but that is remuneration,
I will follow up.

 

[sar104]

I think it's not about the photos but that if you get any sort of remuneration then it's not a recreational flight.
"Someone that sells pictures is not conducting a recreational operation."
That's what I was taught in my training. The example was free tickets but that is remuneration,
I will follow up.

In that respect your training was misleading. Flying under an agreement, or even just the intention, to get paid definitely makes it non-recreational. But, as is commonly the case, the converse is not necessarily true - i.e. just because you are not getting paid doesn't make it recreational - it's necessary but not sufficient. So charitable work with a UAV, for example, is not recreational, even if you regard that work as a hobby.

 

[Deleted member 114292]

In that respect your training was misleading. Flying under an agreement, or even just the intention, to get paid definitely makes it non-recreational. But, as is commonly the case, the converse is not necessarily true - i.e. just because you are not getting paid doesn't make it recreational - it's necessary but not sufficient. So charitable work with a UAV, for example, is not recreational, even if you regard that work as a hobby.

I agree with that - even if you are not getting paid it may not recreational. There was something to that effect mentioned.

 

[sar104]

I agree with that - even if you are not getting paid it may not recreational. There was something to that effect mentioned.

And there's the essential distinction - Part 107 is required to fly non-recreationally - i.e. with any intent other than for pleasure, as the FAA defines it. But you can take photos or video while flying recreationally, and the subsequent use of those for something else doesn't post hoc change the recreational intent of the flight. Part 107 doesn't regulate what you do with those photos or videos, so if their genesis was genuinely recreational then you are perfectly free to use them later for something else. While that may sound like a strange loophole, and undoubtedly has been exploited as such, it really isn't a very useful loophole - anyone doing that regularly runs the risk of getting noticed and reported.

 

[BigAl07]

And there's the essential distinction - Part 107 is required to fly non-recreationally - i.e. with any intent other than for pleasure, as the FAA defines it. But you can take photos or video while flying recreationally, and the subsequent use of those for something else doesn't post hoc change the recreational intent of the flight. Part 107 doesn't regulate what you do with those photos or videos, so if their genesis was genuinely recreational then you are perfectly free to use them later for something else. While that may sound like a strange loophole, and undoubtedly has been exploited as such, it really isn't a very useful loophole - anyone doing that regularly runs the risk of getting noticed and reported.

Very well stated. Thanks for taking the time to break it down a bit differently.

 

[Deleted member 114292]

And there's the essential distinction - Part 107 is required to fly non-recreationally - i.e. with any intent other than for pleasure, as the FAA defines it. But you can take photos or video while flying recreationally, and the subsequent use of those for something else doesn't post hoc change the recreational intent of the flight. Part 107 doesn't regulate what you do with those photos or videos, so if their genesis was genuinely recreational then you are perfectly free to use them later for something else. While that may sound like a strange loophole, and undoubtedly has been exploited as such, it really isn't a very useful loophole - anyone doing that regularly runs the risk of getting noticed and reported.

Not sure where you got that.

If I'm Part 107 certified, am I allowed to operate my drone under the recreational regulations? - Drone Pilot Ground School

Yes, as long as you begin and end the flight under the same rule set, you’re fine to use either.

www.dronepilotgroundschool.com

 

[sar104]

Not sure where you got that.

If I'm Part 107 certified, am I allowed to operate my drone under the recreational regulations? - Drone Pilot Ground School

Yes, as long as you begin and end the flight under the same rule set, you’re fine to use either.

www.dronepilotgroundschool.com

Got what? My post had nothing to do with flying recreationally once you are Part 107 certified.

 

[Deleted member 114292]

Got what? My post had nothing to do with flying recreationally once you are Part 107 certified.

"Part 107 is required to fly non-recreationally - i.e. with any intent other than for pleasure," I took that to mean 107 pilots can't fly recreationally.
That must have been a parsing error....

 

[sar104]

"Part 107 is required to fly non-recreationally - i.e. with any intent other than for pleasure," I took that to mean 107 pilots can't fly recreationally.
That must have been a parsing error....

Oh - I see how you read that. No - it means that to fly non-recreationally requires Part 107, not that Part 107 pilots are required to fly non-recreationally. It's apparently a linguistic version of those optical illusions that flip when you look at them.

 

[Meta4]

Not exactly it contradicts it. I read it as regardless of your intent, you need a part 107 to sell a photo.
"Someone that sells pictures is not conducting a recreational operation."
"there is nothing that precludes the operator from selling those photos when they are later operating under Part 107, but they certainly will need a Remote Pilot Certificate to conduct non-recreational operations."

Your FAA respondent has confused you.
When he says Someone that sells pictures is not conducting a recreational operation, he's confused himself.
The only operation the FAA is concerned with is the flying of the drone.
Whether you conduct a non-recreational picture selling operation is of no concern since the FAA does not regulate the selling of photographiic imagery.

He's confused you further when he answered a question that you didn't ask.
If the original intent was indeed recreational, there is nothing that precludes the operator from selling those photos when they are later operating under Part 107
Go back and ask him is there anything that precludes the operator from selling those photos later without having Part 107.

 

[DanMan32]

In other words, you fly your quad simply for the fun of it, never intending to sell or give away the recordings.
A week later, someone sees the recordings and wants to obtain them from you for them to use. That doesn't make the flight to be required to be under 107.

However if your recordings frequently end up being used for reasons other than recreational, then your flight intentions will come into question.