Part 107 gray area?

[dthreee]

An FAA official stated in a recent FAA webinar that even if you send your drone up to see if the gutters on your house need cleaning. - it’s Part 107, you’re a Commercial Pilot now.

What if you are cleaning gutters recreationally? ?

 

[My Drone Adventures]

In this very specific example you would still be on the safe side of the law since you would not sell your video. However your interpretation of the laws is still incorrect.

Unless you are a lawyer that has successfully defended your position in federal court, you are just stating your own opinion. You are entitled to have your own opinion just as I am.

Have a great day.

 

[Meta4]

The crux is the intent.

As other‘s said it is really the intent. If you are out filming a whale migration for enjoyment and see the Lochness Monster, yes you have the right to share, but not gain any monies from it.

So which is it?
First you say intent is crucial.
But then contradict yourself suggesting that having the good fortune to be able to profit after the flight for something fortuitously captured, somehow magically retrospectively converts a past legal recreational flight into an illegal flight???

Sorry but you are hung up on the imagery rather than the flight.
If there was any offence, it would be unlicenced commercial flight.
But the hypothetical flight was completely in compliance with all regulations.

The FAA has no rules about your photos or what you might do with them.
Their regulations are all about flying.
They care about commercial flight, not commercial images.

 

[My Drone Adventures]

So which is it?
First you say intent is crucial.
But then contradict yourself suggesting that having the good fortune to be able to profit after the flight for something fortuitously captured, somehow magically retrospectively converts a past legal recreational flight into an illegal flight???

Sorry but you are hung up on the imagery rather than the flight.
If there was any offence, it would be unlicenced commercial flight.
But the hypothetical flight was completely in compliance with all regulations.

The FAA has no rules about your photos or what you might do with them.
Their regulations are all about flying.
They care about commercial flight, not commercial images.

Here is an example posed on the FAA’s site:

“Q: Are drone pilots required to have a Part 107 certification in order to sell photos that they took using a drone?

A: If the activity is not for recreational purposes (and flying for the purpose of selling photos would seem a commercial purpose, not recreational), then yes, a Part 107 certificate and compliance with Part 107 would seem appropriate in the scenario you describe.”

Nothing in the question was related to “I intent to fly recreational and later sell the photos” but rather clearly “in order to sell photos they took” the FAA responses it seems 107 would be appropriate.

Always seek a lawyer’s advice and not couch lawyers in the site.

 

[MavicAir2Marc]

Yes, 100% 107 required.

Your first scenario is not 107, "I report anything I see to them", may not be a 107 flight. If you're out flying for recreation, and just happen to see something, it's not a 107 flight.

However, the second scenario, "... and follow up if requested" most definitely is a 107 flight. No question.

The original intent of the flight is the determining factor.

This article should answer any questions. I wrote it exactly for situations like this.

Hobby v. 107: Unscrambled

Why does it seem so difficult for some people to understand the very marked difference between the FAA’s “hobby” rules and “commercial”…

medium.com

Please read Vic's article, he is fully qualified to answer this question correctly...

 

[Meta4]

Here is an example posed on the FAA’s site:
“Q: Are drone pilots required to have a Part 107 certification in order to sell photos that they took using a drone?

But since that question is about something quite different from the topic being discussed here, it's hard to see how/why you can use it to justify your position.

A: If the activity is not for recreational purposes (and flying for the purpose of selling photos would seem a commercial purpose, not recreational), then yes, a Part 107 certificate and compliance with Part 107 would seem appropriate in the scenario you describe.”

Nothing in the question was related to “I intent to fly recreational and later sell the photos” but rather clearly “in order to sell photos they took” the FAA responses it seems 107 would be appropriate.[/QUOTE]
Exactly, the question is irrelevant to this discussion.
All that it makes clear is that to intentionally shoot commercial images, a Part 107 is required.

To make the actual issue clearer for you, I'll extend your (very good) hypothetical scenario.
You caught some great images of the Loch Ness monster during an innocent recreational flight and 6 months later you are offered $3000 for one.
Would you tell the prospective buyer that you are unable to accept their offer and your images must stay unseen in your private collection?
Would the FAA consider that flight carried out legally in the past is now in contravention of the regulations?
What regulation would that be?

As far as the FAA is concerned, your flight was carried out fully complying with their regulations.
Their interest in your flight ends there.
What you might do down the track makes no difference.

 

[Mavic Mac]

Oh, how sorry I am for the horse - the horse, like this thread, has been beaten to death

 

[My Drone Adventures]

But since that question is about something quite different from the topic being discussed here, it's hard to see how/why you can use it to justify your position.


Nothing in the question was related to “I intent to fly recreational and later sell the photos” but rather clearly “in order to sell photos they took” the FAA responses it seems 107 would be appropriate.

Exactly, the question is irrelevant to this discussion.
All that it makes clear is that to intentionally shoot commercial images, a Part 107 is required.

To make the actual issue clearer for you, I'll extend your (very good) hypothetical scenario.
You caught some great images of the Loch Ness monster during an innocent recreational flight and 6 months later you are offered $3000 for one.
Would you tell the prospective buyer that you are unable to accept their offer and your images must stay unseen in your private collection?
Would the FAA consider that flight carried out legally in the past is now in contravention of the regulations?
What regulation would that be?

As far as the FAA is concerned, your flight was carried out fully complying with their regulations.
Their interest in your flight ends there.
What you might do down the track makes no difference.
[/QUOTE]

Thank you for your opinion.

Always seek guidance from a lawyer and not those whom are not lawyers or employees of the FAA.

Have a great day.

 

[PhantomFandom]

Oh, how sorry I am for the horse - the horse, like this thread, has been beaten to death

Haha. Well you just can't talk sense into some people, no matter how wrong they are and how much they contradict their own statements. The hallmark of a person who is wrong but has no proof to back up their stance is the infamous "let's agree to disagree".

 

[PhantomFandom]

Nothing in the question was related to “I intent to fly recreational and later sell the photos” but rather clearly “in order to sell photos they took”

Um, perhaps you were not reading the same FAA response to that question?

A: If the activity is not for recreational purposes (and flying for the purpose of selling photos would seem a commercial purpose,

"Flying for the purpose of selling photos" is clearly intent! If you are NOT flying for the purpose of selling photos (in you example just for whale watching) and you are flying strictly for recreational purposes then you are exempt from Part 107 regulations.

Your own example clearly states what all the rest of us have been saying, but you refuse to understand the law.

 

[BigAl07]

Let's make it VERY simple...

a) You can not claim the Hobby/Recreational "Exception" when you're flying to do something for someone else. Money is not the deciding factor. INTENT of the FLIGHT.

b) We are all Civil Operators (requiring Part 107) by default. The only way to NOT be held to the requirements for Part 107 is to be flying under a COA or flying 100% within the protective bubble of Hobby/Recreation carve out. IF any portion of your FLIGHT does not fit completely within that protective bubble, the bubble is pierced and you're not held accountable for all of Part 107.

c) From the FAA's perspective the OP would indeed be flying outside of Hobby/Recreational (at least how he has worded it) and flying under Part 107.

I spend most of my flying over the ocean. Mostly for profit, but I also work with a local university. If I'm doing marine surveys, but really enjoy doing it, does this constitute a part 107 flight?
I am a part 107 pilot, but it affects my insurance.

Some key words that were used to REMOVE the Hobby/Recreation protective bubble:
Mostly for profit, but I also work with a local university.
If I'm doing marine surveys

Maybe I didn't say that as well as I could have. I report anything I see to them and follow up if requested. I grew up on and in the ocean, and have spent half my life on it.

I report anything I see to them

So you're flying FOR the local university looking for something?
You're doing marine surveys for someone?
Your intent of the flight is to inspect/survey something out over the water and then "report to them" what you see/find. And then once they process/analyze that data then they could dispatch you BACK to the area to acquire more data?

It's GREAT that you "enjoy doing it" and honestly most of us REALLY ENJOY what we do but that in no way removes the requirement for Part 107. That just means you ENJOY your WORK which is AWESOME!

You can not Hobby/Recreate for someone else. That pierces your protective bubble leaving you fully accountable for all Part 107 requirements.


In regards to "selling the images makes the flight retroactively Part 107"
@My Drone Adventures you're wrong stating that "selling images after the fact" requires Part 107. That's not how it works. It's been stated many times by the FAA (verbally and in writing) that someone "could" see/capture something during a Hobby/Recreational flight and later sell that data. It's more of a moral issue than anything else. If the flight was genuinely and purely Hobby it doesn't matter what happens after the fact. The FLIGHT is what matters to the FAA.

I can (and HAVE) fly recreationally and later determine a picture legally captured has some value and sell it. In fact my single most profitable image was captured during a purely HOBBY flight a couple years ago. I was waiting on a client to get their business ready for a ground photo shoot and had time to kill. I drove to the end of town and put the Phantom up in the air because it was beautiful sunlight (Golden Hour). I just wanted to see what the city looked like draped in Golden Light. It was amazing and I snapped some pictures and then landed and went back to my clients location. I really never even though much about it until a few weeks later I was going through some pictures and ran across the ones I snapped that evening with the Phantom. I saw a couple of images that just POPPED in color and contrast and I moved them into my For Sale section. One of those images has sold over a dozen times and has brought in thousands of $$ of income to my company and it was taken 100% hobby and 100% LEGALLY. The FLIGHT was hobby which is what the FAA cares about.

Now if a "Hobbyist" has a pattern of consistently selling data from HOBBY flights there might be some questioning the authenticity of the INTENT of the flight but that's well outside of this topic. Use of the DATA after the flight does not change the INTENT of the flight but as stated that's more of a MORAL issue and it's hard to prove intent unless there is an established pattern.

 

[Vic Moss]

Thanks, Vic but unless you are a lawyer and have trial experience in this subject, I will stick with the published FAA guidance. Even if the FAA guidance is outdated, it is a reasonable defense rather then saying “I read this on the internet from a non-FAA site.”

I am not a lawyer. As a matter of fact, I have an art degree.

But when it comes to FAA regulations, I am an expert. To the point where many in the FAA, from those in D.C. to my local Class B tower, reach out to me for questions or to help other drone owners understand the rules. I'm part of the FAA Safety Team (FAAST) as a Drone Pro.

I work with local and state official when they are drafting UAS ordinances and regulations. And as far as trail experience, I was an expert witness for Dr. Singer in Singer v. Newton (MA) when he sued the city of Newton, MA for over arching drone laws. Newton lost.

I know my stuff.

And that article you seem to want to ignore was proofed by two of my FAA contacts (including the FAA's "Drone Guy") before I published it.

And in another of your posts, you are incorrect.

You state "As other‘s said it is really the intent. If you are out filming a whale migration for enjoyment and see the Lochness Monster, yes you have the right to share, but not gain any monies from it."

While the first sentence is correct, the second is 100% wrong. Intent is always the determining factor in the decision to fly under 107 rules or 44809. However, it is perfectly legal to sell imagery taken during a 44809 flight.

In the FAA's resource library you'll find a memo titled "Media Use of UAS" (https://www.faa.gov/about/office_org/headquarters_offices/agc/practice_areas/regulations/interpretations/Data/interps/2015/Williams-AFS-80 - (2015) Legal Interpretation.pdf). While the language is outdated and it deals specifically with media, it has also been used buy the FAA to allow imagery from hobby flights to be sold after that flight. The FAA is very clear on this.

You mentioned a few times that you research and review FAA guidance. While that is also a good idea, you should keep yourself open to learning from those with more knowledge than you. And as far as "published FAA guidance", everything I've stated above is published. As is my article. Although technically not an FAA article, as mentioned, is was FAA vetted.

I also write for the FAA's blog.

Make sure you understand who you're disagreeing with.

 

[Kyle76]

BigAl and Vic, I got to thinking after my earlier response regarding the Loch Ness Monster analogy (I agreed that one could sell recreational footage without a Part 107), whether the FAA begins to draw a line in flight. In other words, I'm out shooting a beautiful day over Loch Ness and happen to see Nessie over in another part of the loch. I fly over that way with the pure intent of getting some pictures, knowing they could be worth some money. My flight was initiated as purely recreational, but midflight I begin pursuing pictures that might provide monetary gain. What's the deciding factor here: my original intent for the flight or my midflight intent?

 

[BigAl07]

BigAl and Vic, I got to thinking after my earlier response regarding the Loch Ness Monster analogy (I agreed that one could sell recreational footage without a Part 107), whether the FAA begins to draw a line in flight. In other words, I'm out shooting a beautiful day over Loch Ness and happen to see Nessie over in another part of the loch. I fly over that way with the pure intent of getting some pictures, knowing they could be worth some money. My flight was initiated as purely recreational, but midflight I begin pursuing pictures that might provide monetary gain. What's the deciding factor here: my original intent for the flight or my midflight intent?

Flight started off as Hobby (all good). Legally the flight must remain Hobby as you can't mix/match hobby/recreational rules but the vast majority of UAS rules are the same. So you continue to fly and take your pictures etc following FAA rules as a hobbyist and complete the flight. Really ANY picture we take COULD end up being of value later on but your INTENT of the flight was hobby and so long as you didn't do anything to bust hobby rules you'd be fine.

Now if you're hanging out and you say, "Oh I think I'll go take some pictures of this lake for the NEWS AGENCY to sell to them" then the INTENT of the flight was not hobby at all.

 

[PhantomFandom]

BigAl and Vic, I got to thinking after my earlier response regarding the Loch Ness Monster analogy (I agreed that one could sell recreational footage without a Part 107), whether the FAA begins to draw a line in flight. In other words, I'm out shooting a beautiful day over Loch Ness and happen to see Nessie over in another part of the loch. I fly over that way with the pure intent of getting some pictures, knowing they could be worth some money. My flight was initiated as purely recreational, but midflight I begin pursuing pictures that might provide monetary gain. What's the deciding factor here: my original intent for the flight or my midflight intent?

You cannot change the type of mission mid-flight. You must decide what type of mission you are flying at launch and then stick with that through the entire flight.

So your example is interesting because if you decide at launch that it is a recreational flight, then it must remain recreational until you land. If you do not have a Part 107 certification then it must naturally always be recreational. I tis intent at the time of the flight.

 

[Vic Moss]

BigAl and Vic, I got to thinking after my earlier response regarding the Loch Ness Monster analogy (I agreed that one could sell recreational footage without a Part 107), whether the FAA begins to draw a line in flight. In other words, I'm out shooting a beautiful day over Loch Ness and happen to see Nessie over in another part of the loch. I fly over that way with the pure intent of getting some pictures, knowing they could be worth some money. My flight was initiated as purely recreational, but midflight I begin pursuing pictures that might provide monetary gain. What's the deciding factor here: my original intent for the flight or my midflight intent?

Technically, you would be required to land and start the flight over as a 107 flight. That's the legal answer, assuming the flight took place in the U.S. and not Scotland. ?

The sprit of the law answer is that no one would care. Not even the FAA. If someone were to use this excuse all the time, then it may end up on the radar of the FAA.

 

[MavicAir2Marc]

@Vic Moss beat me to the Scotland comment... ?

 

[PhantomFandom]

That's the legal answer, assuming the flight took place in the U.S. and not Scotland. ?

True but if we are getting particular then you wouldn't have any chance of catching sight of the Loch Ness Monster in the USA. And if you were at Loch Ness, it would be a terrible place for whale watching (as in the hypothetical) because there are now hales there.

 

[Lets Fly]

An FAA official stated in a recent FAA webinar that even if you send your drone up to see if the gutters on your house need cleaning. - it’s Part 107, you’re a Commercial Pilot now.

That example should be ridiculous .

 

[Vic Moss]

That example should be ridiculous .

But it's true.

Will the FAA come after you for doing that? Of course not. But if you use it in your gutter cleaning business, they might.