Selling prints - Part 107 required or not?

[brett8883]

I did ask the faa that question and here is the reply :

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.

@sar104 @BigAl07 we need some back up here.

This person at the FAA seems to me to either be answering a different question or avoiding the question and are being tricky about it but I think we need to cite some guidance to break this down and I don’t have that handy maybe you do.

The person at the FAA said “Someone that sells pictures is not conducting a recreational operation” I take that to mean someone who past present and future sells photos isn’t conducting recreational operations.

This person also says “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.” It doesn’t say, the person CAN’T sell the photo unless the get a remote pilot certificate.

Sounds to me like this is a calculated response which avoids answering the question if a photo taken during a recreational operation can or can’t later be sold without a remote pilot certificate but without further proof I’m just being the armchair responder I earlier criticized so asking for help explaining this.

 

[Deleted member 114292]

@sar104 @BigAl07 we need some back up here.

This person at the FAA seems to me to either be answering a different question or avoiding the question and are being tricky about it but I think we need to cite some guidance to break this down and I don’t have that handy maybe you do.

The person at the FAA said “Someone that sells pictures is not conducting a recreational operation” I take that to mean someone who past present and future sells photos isn’t conducting recreational operations.

This person also says “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.” It doesn’t say, the person CAN’T sell the photo unless the get a remote pilot certificate.

Sounds to me like this is a calculated response which avoids answering the question if a photo taken during a recreational operation can or can’t later be sold without a remote pilot certificate but without further proof I’m just being the armchair responder I earlier criticized so asking for help explaining this.

I completely agree with your synopsis of this reply.
This was the question:
"Can a non Part 107 pilot still sell his photographs based on intention to anyone, not just the news media?"
For one thing I can't find any instances of the FAA even mentioning this assuming you are not violating any drone rules, mainly flying over people. In fact I would advise to never post drone pictures with people in them.

Further if they tried to prosecute this it would likely fail if it can be shown that no one was at risk.

However it does imply that intention will be judged by what happens next not what you say your intention is.

 

[naiku]

Sounds to me like this is a calculated response which avoids answering the question if a photo taken during a recreational operation can or can’t later be sold without a remote pilot certificate but without further proof I’m just being the armchair responder I earlier criticized so asking for help explaining this.

Yeah that was a very vague reply in my opinion and didn't really clear things up at all.

In the case I am asking about, I flew around my neighborhood, took some pictures that were posted to a community board. Someone then started asking if I'd sell prints. I took that as prints of those photos that I took during a recreational flight.

Now, absolutely, if I posted a reply, saying sure I'll sell prints and if anyone wants me to take a photo of their house I'll sell that to them, that's commercial and I'd absolutely need the 107.

 

[theDRONEranger]

https://www.faa.gov/documentLibrary/media/Advisory_Circular/Editorial_Update_AC_91-57B.pdf

This is the best I could locate.
7.1.1The Aircraft is Flown Strictly for Recreational Purposes. Any use of unmanned aircraft for commercial purposes must be conducted under part 107 or other applicable FAA regulations (e.g., 14 CFR part 91, 135, or 137).

So, if the flight is strictly recreational from start to finish . . .

 

[Deleted member 114292]

Yeah that was a very vague reply in my opinion and didn't really clear things up at all.

In the case I am asking about, I flew around my neighborhood, took some pictures that were posted to a community board. Someone then started asking if I'd sell prints. I took that as prints of those photos that I took during a recreational flight.

Now, absolutely, if I posted a reply, saying sure I'll sell prints and if anyone wants me to take a photo of their house I'll sell that to them, that's commercial and I'd absolutely need the 107.

Like I said it’s unlikely anything would come of it.
But their answer does put it in a gray area.

 

[sar104]

@sar104 @BigAl07 we need some back up here.

This person at the FAA seems to me to either be answering a different question or avoiding the question and are being tricky about it but I think we need to cite some guidance to break this down and I don’t have that handy maybe you do.

The person at the FAA said “Someone that sells pictures is not conducting a recreational operation” I take that to mean someone who past present and future sells photos isn’t conducting recreational operations.

This person also says “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.” It doesn’t say, the person CAN’T sell the photo unless the get a remote pilot certificate.

Sounds to me like this is a calculated response which avoids answering the question if a photo taken during a recreational operation can or can’t later be sold without a remote pilot certificate but without further proof I’m just being the armchair responder I earlier criticized so asking for help explaining this.

That FAA response is actually substantially incorrect - unfortunate, but not that uncommon. What matters is whether the flight was recreational. You can take photos or video while flying recreationally, but not if the intent is to use those photos for other than recreational purposes. And note - just to be clear - that the test is whether the purpose is recreational, not whether it is non-commercial. If you subsequently get an unplanned opportunity to sell that material, or use it for some non-recreational purpose, then that doesn't change the original intent of the flight, which is all that is regulated under Part 107, and so you can legally do that. The FAA has officially (i.e. not in an informal response to an individual's question) clarified that more than once.

Worse still, the fact that one might later get a Part 107 certification doesn't change anything; if the original intent of the flight was recreational then it cannot later be changed, Part 107 certification or not. And it is the flight that is regulated, not the sale of photos or video, and so later acquisition of a Part 107 certification also doesn't have any bearing on material acquired previously. If the original flight intent was recreational then you can later (i.e. if it wasn't your original plan) sell photos or video. If the original flight intent was not recreational then it was illegal without a Part 107 certification, and nothing that happens later will change that either.

 

[brett8883]

That FAA response is actually substantially incorrect - unfortunate, but not that uncommon. What matters is whether the flight was recreational. You can take photos or video while flying recreationally, but not if the intent is to use those photos for other than recreational purposes. And note - just to be clear - that the test is whether the purpose is recreational, not whether it is non-commercial. If you subsequently get an unplanned opportunity to sell that material, or use it for some non-recreational purpose, then that doesn't change the original intent of the flight, which is all that is regulated under Part 107, and so you can legally do that. The FAA has officially (i.e. not in an informal response to an individual's question) clarified that more than once.

Worse still, the fact that one might later get a Part 107 certification doesn't change anything; if the original intent of the flight was recreational then it cannot later be changed, Part 107 certification or not. And it is the flight that is regulated, not the sale of photos or video, and so later acquisition of a Part 107 certification also doesn't have any bearing on material acquired previously. If the original flight intent was recreational then you can later (i.e. if it wasn't your original plan) sell photos or video. If the original flight intent was not recreational then it was illegal without a Part 107 certification, and nothing that happens later will change that either.

Thanks. Yea especially the part about retroactively making a flight a 107 flight just doesn’t even make sense.

You can’t drive a car around and then go to the DMV and get your driver’s license and somehow make the fact that you were driving around without a license ok.

 

[CactusJackSlade]

I did ask the faa that question and here is the reply :

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.

So in other words, when you start selling, you must have 107 in hand at the time of the sale... as I read this.

 

[LazerMan]

Follow this flow chart: User Identification Tool

As I have said before, selling after a "recreational" flight makes it a commercial enterprise. Otherwise we would all fly "recreationally" and do backwards deals later.

wrong wrong wrong

 

[Meta4]

So in other words, when you start selling, you must have 107 in hand at the time of the sale... as I read this.

The FAA guy in that case wasn't answering the question that was asked.
He was answering a different question.

Follow this flow chart: User Identification Tool

That is to identify which form of registration/rules is applicable.
In the situation this thread is about, using that flow chart would have given recreational as the answer.
It says nothing about later selling a photo that was legally taken as part of a recreational flight.

As I have said before, selling after a "recreational" flight makes it a commercial enterprise. Otherwise we would all fly "recreationally" and do backwards deals later.

Selling a photo is a commercial transaction.
But the4 FAA has no rules at all on what you do on the ground after a flight.
Their only concern is what you do during the flight.
ie .. was the flight a commercial flight?
At the time of flight, the pilot's intentions were 100% recreational.
Later selling a photo doesn't magically make a previous legal flight retrospectively illegal.

it's very black and white, I never read anything about "intent". It was always stated that if you sell, trade, bargain, anything for gain based on photos or videos from your flight that is commercial and needs a 107 cert.

Unless the FAA has changed their wording in the last 9 months technically you need a 107.

I would still be very interested to see where It was always stated or where we can see the FAA wording that hasn't changed?

 

[brett8883]

Well, it's been a year since I took my 107 re-cert... and it's very black and white, I never read anything about "intent". It was always stated that if you sell, trade, bargain, anything for gain based on photos or videos from your flight that is commercial and needs a 107 cert.

Otherwise no one would bother with a 107, they would just say "Well, I was flying recreationally, but later some guy wanted photo's, so I sold them"... just doesn't work that way or we would all just fly for "recreation" and later I happen to sell some photos from my flight. Unless the FAA has changed their wording in the last 9 months technically you need a 107. All this being said, unless someone turns you in, or you start selling lots of photos, have a website etc the likelihood of the FAA knocking at your door is probably nil.

I am back at home now and can now cite the official sources.

Here is what it says exactly in the Federal Register so this is as official as it gets.

It states the 8 statutory conditions for flying under the exception for the limited recreational operations which are in the FAA Reauthorization Act of 2018 and then the FAA adds their official guidance below it.

The first statutory condition that the law requires is:

“1. The aircraft is flown strictly for recreational purposes”

.The FAA adds their own guidance which is their official interpretation of the statutory condition anything else is just an opinion and you know what they says about those...

“Your unmanned aircraft must be flown for only a recreational purpose throughout the duration of the operation. You may not combine recreational and commercial purposes in a single operation. If you are using the unmanned aircraft for a commercial or business purpose, the operation must be conducted under 14 CFR part 107 or other applicable FAA regulations.”

(Federal Register-84 FR 22552)


You can see you have satisfied this condition if the “purpose” (intent) of the flight was and remained recreational “throughout the duration of the operation.” Note that it doesn’t say forever and always or unless you obtain a remote pilot certificate later. It in fact gives a very clear finite duration for when that intent is required throughout the duration of the operation.

 

[brett8883]

@CactusJackSlade

For your information the wording DID change and the wording above is dated May 15, 2019 so it is possible that this guidance and law are new to you.

The old guidance stated:

“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 recreational flights. Flights conducted incidental to, and within the scope of, a business where no common carriage is involved, generally may operate under FAA’s general operating rules of part 91. Although they are not commercial operations conducted for compensation or hire, such operations do not qualify as a hobby or recreation flight because of the nexus between the operator’s business and the operation of the aircraft.“

(https://www.faa.gov/uas/educational_users/media/model_aircraft_spec_rule.pdf)

THIS GUIDANCE HAS BEEN WITHDRAWN AND IS NOW VOID

So the “purpose” (intent) of the flight has always been the key, but the wording did change.

 

[BadWolf1]

This doesn't help you because I am in the UK, and it's only my thoughts.

But the way I see it is that you were flying for recreational purposes with no intent to market or sell images. People want copies of your pictures, and you might be OK selling these historical images. I'm not a lawyer, but a reasonable person is likely to agree this would be ok in their book.

The thing is you clearly intend to offer images for sale in the future. At that point things change, and I would personally go for the qualification.

Also UK and similar take ...
Let's say on a flight exempt from licensing, you photograph a newly completed building -everything legal from take-off to landing.
That night the building burns down. If you offer to photograph the smouldering ruins for the the investigators that needs to be licensed, but what about selling the legally taken picture you already have ?
Generally if something was legal when it was done, it stays legal, so unless the law makes it an offence to sell pictures /data/etc gathered on a exempt flight, things are probably OK. A law like that is difficult to enforce and aviation authorities care about legality of flights not of image sales. And it would throw up all sorts of odd questions - would getting licensed afterwards might allow sale of pre-existing pictures ? Would failure to renew make an offence of selling them ?
The message - a flight to do / gather saleable work is not a recreational one - but there are odd ifs and buts with that.

 

[CactusJackSlade]

wrong wrong wrong

My question to the FAA was this: "If I am out flying for recreational use, then later someone wants a photo of video of what I shot, is this considered commercial use of my drone and subject to the 107 cert requirements."

I just received this from the FAA:

"Please let me clarify. All small UAS (under 55 pounds) operations in the U.S. National Airspace System are governed by law. That law is 14 CFR Part 107. There is a limited statutory exception (a "carve out") to the law which, under certain circumstances, allows operation for recreation ONLY.

Financial compensation, or the lack of it, is not the determinant for the type of operation you are conducting.
If you keep imagery from your drone for yourself or for a family member, the that could be interpreted as recreational activity. If you share your imagery with third parties or post drone video to social media you no longer own the rights to that imagery. That is no longer a recreational use and you must have a remote pilot certificate."

Pretty clear cut: YES if you sell after the fact, you need a 107 - even I was unaware of the social posting of video then constitutes commercial use...

 

[sar104]

My question to the FAA was this: "If I am out flying for recreational use, then later someone wants a photo of video of what I shot, is this considered commercial use of my drone and subject to the 107 cert requirements."

I just received this from the FAA:

"Please let me clarify. All small UAS (under 55 pounds) operations in the U.S. National Airspace System are governed by law. That law is 14 CFR Part 107. There is a limited statutory exception (a "carve out") to the law which, under certain circumstances, allows operation for recreation ONLY.

Financial compensation, or the lack of it, is not the determinant for the type of operation you are conducting.
If you keep imagery from your drone for yourself or for a family member, the that could be interpreted as recreational activity. If you share your imagery with third parties or post drone video to social media you no longer own the rights to that imagery. That is no longer a recreational use and you must have a remote pilot certificate."

Pretty clear cut: YES if you sell after the fact, you need a 107 - even I was unaware of the social posting of video then constitutes commercial use...

It's certainly a clear cut answer, but it is still completely incorrect. It's actually pretty frustrating that random unnamed FAA employees are giving out such contradictory and, in this case incorrect, information in individual responses.

 

[brett8883]

If you share your imagery with third parties or post drone video to social media you no longer own the rights to that imagery. That is no longer a recreational use and you must have a remote pilot certificate."

If that’s true every drone operator in the US without a Remote Pilot certificate is a criminal lol

What was this guy thinking? This is a total lack of common sense...

 

[sar104]

If that’s true every drone operator in the US without a Remote Pilot certificate is a criminal lol

What was this guy thinking? This is a total lack of common sense...

Many people are strangely reluctant to refrain from answering questions without first ensuring that they know the correct answer. Obviously it is unreasonable to expect all FAA employees to be familiar with sUAS regulation, especially some of the more arcane aspects, but it wouldn't have taken much effort in this case to have established the FAA's previous determinations on this issue before responding.

 

[Mr.H.]

Here is my two cents with regards to the original topic...

If you ever sold anything on Facebook, or some other classified ad, did you report any of that and paid taxes? Most people don't because it's just a one off sale here and there. Yes the FAA wants stricked obedience to every law just like any other government agency, but you probably wont get in trouble if it's not a business you are doing. If worse comes to worse just be creative. Give your fun recreational hobby pictures to a family member. Now the pictures are theres to do with how-ever they want, let them sell the pictures. Have no family members to help you, than sell a 6 pack of beer, and charge them 50 bucks for service to get the beer and once they made the transaction give them the pictures for free to show your appreciation. Or give them the pictures for free, but tell them you have to put it on an SD card and the SD card cost $50 bucks, or whatever.
But if this becomes a business where you are advertising and handing out receipts, than that method wont work either. Be creative my friend. Ok now the drone police can flame me.

 

[sar104]

Here is my two cents with regards to the original topic...

If you ever sold anything on Facebook, or some other classified ad, did you report any of that and paied taxes? Most people don't because it's just a one off sale here and there.But if yo are making a business of it and nned to report you income with taxes, than you probably should. Yes the FAA wants stricked obedience to every law just like any other goernment agency, but you probably wont get in trouble if it's not a business you are doing. If worse comes to worse and just be creative. Give your fun recreational hobby pictures to a family member. Now the pictures are theres to do with how-ever they want, let them sell the pictures. Have no family member to help you, than sell a 6 pack of beer, and charge them 50 bucks for service to get the beer and once they made the transaction give them the pictures for free to show your appreciation.
But if this becomes a business where you are advertising and handing out receipts, than that method wont work either. And that's how business and Trump can pay nearly no taxes - Be creative my friend. Ok now the drone police can flame me.

The FAA has clarified on at least a couple of occasions that posting personally on FB doesn't break the recreational requirement provided that it is not on a monetized channel. Posting on a FB business page would also break it.

 

[Meta4]

Be creative my friend. Ok now the drone police can flame me.

Apart from the silliness of these "creative" suggestions, they are completely unnecessary since the FAA has no rules about selling imagery.
Their rules are all about flying and what matters is, was the flight done for commercial purposes or not.
If you carry out a flight legally under recreational rules amd months later are lucky enough to have someone offer to buy images from that flight and sell to them, that does not retrospectively make your previous legal flight now illegal.
.