The memo was in response to a question about news gathering, but the statements in it are clearly broader:
Whether an individual taking pictures or videos or gathering other information 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's (sic) 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.
