Rumor of FAA restriction on use of drone photos

[WillB]

I hear a rumor that, as I understand it, if you fly as a hobbyist and take a photo which you later provide to someone for commercial use, that you are in violation. That is, you need a UAS license and operate as a commercial enterprise to do this.

 

[msinger]

You are only in violation if you took that photo knowing that you were going to sell it (or give it away) for a commercial use at a later time.

 

[WillB]

You are only in violation if you took that photo knowing that you were going to sell it (or give it away) for a commercial use at a later time.

That makes sense to me.

 

[Airea51]

Yeah, but remember, you are dealing with a government agency, so you've got to throw all sense out the window. Hahaha

 

[AMann]

You are only in violation if you took that photo knowing that you were going to sell it (or give it away) for a commercial use at a later time.

I’m not saying it’s not true, but how the heck would one prove that in front of a federal magistrate? There’s already been a few lame excuses used like “I didn’t know at the time I took that picture of the car lot or yacht that the owner would pay me for it when I showed it to him” and “I didn’t know at the time I took that photo of the beach that people would buy it if I posted it on Icy or Fleabay”.

@WillB - best to get the 107 certificate if you think you might even be willing to sell a photo at the right price, and besides, it helps to develop a good knowledge base for becoming a better and safer pilot.

 

[jb.]

Burden of proof is on the accuser. Better question, how would they prove you intended commercial use at the time of flight?

If you’re doing this all the time, I can see them giving you the side eye with that defense, but if it’s a one off you’re likely fine. I’m not a lawyer, of course.

 

[AMann]

Burden of proof is on the accuser. Better question, how would they prove you intended commercial use at the time of flight?

If you’re doing this all the time, I can see them giving you the side eye with that defense, but if it’s a one off you’re likely fine. I’m not a lawyer, of course.

I think in that scenario I presented above that the burden of proof for a FAA to issue a citation (legitimate or not) would have been met already had the RP posted a photo for sale or by having already sold a photo, thus it would be on the RP’s lap to defend themself as they stood in front of a federal magistrate.

 

[jb.]

I think in that scenario I presented above that the burden of proof for a FAA to issue a citation (legitimate or not) would have been met already had the RP posted a photo for sale or by having already sold a photo, thus it would be on the RP’s lap to defend themself as they stood in front of a federal magistrate.

If I’m repeatedly “flying for hobby purposes” and selling photos, the FAA would have a reasonable case that I’m not really flying for hobby purposes. In that case, yes... you would likely have to explain why you’re continually making commercial use of your photos obtained on “hobby” flights. It looks pretty fishy.

Same if the photo wasn’t really the kind of photo you’d capture for hobby purposes (for example, a real estate photo... few people would believe you’d just happen to take a hobby photo of a house going on the market at the exact right time). Looks fishy.

If you truly did capture the photo during a hobby flight and then sell it afterwards, that’s completely within the rules. If it’s not a common occurrence for you, I can’t imagine that explanation wouldn’t fly.

Further... the FAA doesn’t issue citations, they issue enforcement actions which are a civil matter. These enforcement actions are appealed to an NTSB or DoT administrative law judge... not a federal magistrate (there is no such position... there are “federal magistrate judges but they’d never hear an FAA appeal, they’re basically understudy judges for federal district court). You don’t enter the court system on an FAA EA appeal until the Court of Appeals level.

This also comes into play even if you have an SUAS Remote Pilot certificate and you’re flying in a hobby capacity (outside of 107 rules in some way).

In short, what msinger up there posted is correct. It’s fine to sell a photo you captured during a hobby flight, but I wouldn’t make a habit of it.

 

[kensteele]

I think in that scenario I presented above that the burden of proof for a FAA to issue a citation (legitimate or not) would have been met already had the RP posted a photo for sale or by having already sold a photo, thus it would be on the RP’s lap to defend themself as they stood in front of a federal magistrate.

are you serious? i can't believe you just said that.

eta: ok, now i understand. just minutes ago, i read the locked "arrested" thread for the first time. pretty sad i didn't get a chance to add my thoughts to the thread but it's all pretty clear to me now.

 

[Briarcliff]

Try catching the Real Estate agents that knowingly post pictures without part 107
Hit the industry with a few fines and those who fly part 107 as a business will benefit big time.
I’ve been trying to get the local MLS systems to required registration of Realtors who are apart 107 certified- but in fact they could care less

 

[BigAl07]

Try catching the Real Estate agents that knowingly post pictures without part 107
Hit the industry with a few fines and those who fly part 107 as a business will benefit big time.
I’ve been trying to get the local MLS systems to required registration of Realtors who are apart 107 certified- but in fact they could care less

That's a shame. Our local MLS requires the RPIC to have credentials "On File" with the MLS before they will publish any "aerial" images. No license No published images.

 

[Briarcliff]

Can you give me a heads up on the MLS you mentioned. Perhaps I could use their template to convince our systems.
I’ve gone to NAR as well and the attitude is not welcoming.
Too much bother I presume - that is until someone is injured ( certainly hope not) then suddenly they will take notice.
I believe if an injury were to take place the MLS could be held accountable.
Thanks for your quick reply and congrats to an MLS that believes ethics and rules matter.

 

[AMann]

If I’m repeatedly “flying for hobby purposes” and selling photos, the FAA would have a reasonable case that I’m not really flying for hobby purposes. In that case, yes... you would likely have to explain why you’re continually making commercial use of your photos obtained on “hobby” flights. It looks pretty fishy.

Same if the photo wasn’t really the kind of photo you’d capture for hobby purposes (for example, a real estate photo... few people would believe you’d just happen to take a hobby photo of a house going on the market at the exact right time). Looks fishy.

If you truly did capture the photo during a hobby flight and then sell it afterwards, that’s completely within the rules. If it’s not a common occurrence for you, I can’t imagine that explanation wouldn’t fly.

Further... the FAA doesn’t issue citations, they issue enforcement actions which are a civil matter. These enforcement actions are appealed to an NTSB or DoT administrative law judge... not a federal magistrate (there is no such position... there are “federal magistrate judges but they’d never hear an FAA appeal, they’re basically understudy judges for federal district court). You don’t enter the court system on an FAA EA appeal until the Court of Appeals level.

This also comes into play even if you have an SUAS Remote Pilot certificate and you’re flying in a hobby capacity (outside of 107 rules in some way).

In short, what msinger up there posted is correct. It’s fine to sell a photo you captured during a hobby flight, but I wouldn’t make a habit of it.

As I started out in my 1st post above “I’m not saying it’s not true...” as I was agreeing with msinger’s post, but the examples I presented were some exaggerated ones that Ive seen from people who have sold work without a 107. I was pointing out that it would be hard to defend yourself if
ever faced with a enforcement action.

You are right in that it would be an issue if shown to be a habitual thing, such as where someone has a website selling aerial images of their travels or is selling many commercial type images, which was my point as well.

 

[theDRONEranger]

I am NOT a lawyer! But, I did shake the hand of one once. Just once!

If you flew with the intent of pure fun from start to finish, then it was non commercial. If another person saw the photo and wanted to buy it from you, after the fact, that should be good too! If it becomes habit, I suggest a 107.

 

[kensteele]

Can you give me a heads up on the MLS you mentioned. Perhaps I could use their template to convince our systems.
I’ve gone to NAR as well and the attitude is not welcoming.
Too much bother I presume - that is until someone is injured ( certainly hope not) then suddenly they will take notice.
I believe if an injury were to take place the MLS could be held accountable.
Thanks for your quick reply and congrats to an MLS that believes ethics and rules matter.

if a 107 pilot injures someone, can the MLS be held accountable?

 

[Briarcliff]

Could be possible if the MLS recognized the danger in advance did not alert their members of that reality - a good attorney would likely enjoin everyone in sight.
Let’s hope nothing like that ever happens as our fellow pilots are all such excellent pilots
The thread is meant to be proactive.
I am surprised the Realtor Organization doesn’t just make it simple. The FAA has part 107 rules that need to be followed. all pilots as well as Realtor Pilots

 

[JamesD71]

If I’m repeatedly “flying for hobby purposes” and selling photos, the FAA would have a reasonable case that I’m not really flying for hobby purposes. In that case, yes... you would likely have to explain why you’re continually making commercial use of your photos obtained on “hobby” flights. It looks pretty fishy.

Same if the photo wasn’t really the kind of photo you’d capture for hobby purposes (for example, a real estate photo... few people would believe you’d just happen to take a hobby photo of a house going on the market at the exact right time). Looks fishy.

If you truly did capture the photo during a hobby flight and then sell it afterwards, that’s completely within the rules. If it’s not a common occurrence for you, I can’t imagine that explanation wouldn’t fly.

Further... the FAA doesn’t issue citations, they issue enforcement actions which are a civil matter. These enforcement actions are appealed to an NTSB or DoT administrative law judge... not a federal magistrate (there is no such position... there are “federal magistrate judges but they’d never hear an FAA appeal, they’re basically understudy judges for federal district court). You don’t enter the court system on an FAA EA appeal until the Court of Appeals level.

This also comes into play even if you have an SUAS Remote Pilot certificate and you’re flying in a hobby capacity (outside of 107 rules in some way).

In short, what msinger up there posted is correct. It’s fine to sell a photo you captured during a hobby flight, but I wouldn’t make a habit of it.

There’s no ‘repeated’ or ‘continually’ in the law if A photo you take with your recreational drone falls into a commercial end use, then you’re clearly in violation- 100%. No ifs, ands, or buts about it! Be very careful who you give one of you photos or videos to! They may be dumber than all-get-out or they just may plainly understand that they have no responsibility in such a matter and are very willing to gamble with your actual responsibilities...hence why most people on this thread seem to think the law is very rubbery...rather than precise.

 

[Ranger]

It's my understanding that the FAA only regulates the flight, not the subsequent use of photos. So it is the intent of the flight that determines which rules to fly under.

 

[Meta4]

There’s no ‘repeated’ or ‘continually’ in the law if A photo you take with your recreational drone falls into a commercial end use, then you’re clearly in violation- 100%. No ifs, ands, or buts about it! Be very careful who you give one of you photos or videos to! They may be dumber than all-get-out or they just may plainly understand that they have no responsibility in such a matter and are very willing to gamble with your actual responsibilities...hence why most people on this thread seem to think the law is very rubbery...rather than precise.

The FAA has no rules or regulations about photos, they only have rules and regulations about flight.
If you take some photos on a legal recreational flight, the flight does not retrospectively become an illegal flight at some time in the future because of something you do after the flight.

 

[kensteele]

There’s no ‘repeated’ or ‘continually’ in the law if A photo you take with your recreational drone falls into a commercial end use, then you’re clearly in violation- 100%. No ifs, ands, or buts about it! Be very careful who you give one of you photos or videos to! They may be dumber than all-get-out or they just may plainly understand that they have no responsibility in such a matter and are very willing to gamble with your actual responsibilities...hence why most people on this thread seem to think the law is very rubbery...rather than precise.

negative, james. if you could just use the word "intent" in some of your explanations, you'd see just how wrong you are.