With all the law changes,can I sell a photo taken for hobby purposes?
- Thread starter offtheback
- Start date
If it comes up, tell them you can’t sell it, but you can give it to them and donations are always welcome. Maybe the last donation I received was $25
(1) If the photo was taken when flying recreationally then that's unnecessary - payment is fine.
(2) If the flight was not recreational then it was the flight that was illegal, not subsequently taking money for a photo, and giving it away doesn't make it legal.
In the USA as with most countries, people with hobbies sell their art work all the time. They do this through RedBubble.com, through many other web based outlets, at fairs and markets... surely your hobby drone pictures are in the same class. It's a hobby sale rather than a commercial interest....
Can you cite this for us? The reason I ask is because, I think it was Ken Heron was flying a drone for fun. He was watching a friend harvest crops. He posted the video with a logo for his friends farm. He was gigged for it as it was "in furtherance of a business".
I can't find the video right now or I'd link it.
iFly4U
Member
Back to the original question:
Under most AU, CAN, UK and USA regs, it is the actual performance of the work for reward that renders it commercial. Reward is money, 'energy exchange', barter, quid pro quo, "I'll buy you a beer/lunch/etc afterwards", etc.
Thus, if you acquire data/images/footage for recreational or entertainment purposes and do that without reward, it is non-commercial.
If that captured imagery or data happens to be of a commercial use after the event, then it is non-commercial flight resulting in commercial property for sale or licencing, e.g. you capture images of 'first contact' with extraterrestrial life... you bet your hairy behind there would be commercial interest in that content. It was incidental to you flying over some crop circles for amusement/study/other purposes, but a very $$$$ moment.
However, if you set out to capture image/data/other with the intent of and for the purpose of receiving reward for doing same, then that is a commercial activity and the resultant work(s) is commercial.
So, as to the OP's question: If you shot that image/footage and the local government authority want to use it in their report, then it's OK provided you did not shoot it at their request in return for a reward.
For best information, don't rely on a bunch of armchair lawyers - check with your local aviation regulator on the phone and get a call reference number so that if your acts are ever queried, you have demonstrably acted in good faith with information provided by the peak government authority, who is of course beyond reproach.
Cheers - i.
Under most AU, CAN, UK and USA regs, it is the actual performance of the work for reward that renders it commercial. Reward is money, 'energy exchange', barter, quid pro quo, "I'll buy you a beer/lunch/etc afterwards", etc.
Thus, if you acquire data/images/footage for recreational or entertainment purposes and do that without reward, it is non-commercial.
If that captured imagery or data happens to be of a commercial use after the event, then it is non-commercial flight resulting in commercial property for sale or licencing, e.g. you capture images of 'first contact' with extraterrestrial life... you bet your hairy behind there would be commercial interest in that content. It was incidental to you flying over some crop circles for amusement/study/other purposes, but a very $$$$ moment.
However, if you set out to capture image/data/other with the intent of and for the purpose of receiving reward for doing same, then that is a commercial activity and the resultant work(s) is commercial.
So, as to the OP's question: If you shot that image/footage and the local government authority want to use it in their report, then it's OK provided you did not shoot it at their request in return for a reward.
For best information, don't rely on a bunch of armchair lawyers - check with your local aviation regulator on the phone and get a call reference number so that if your acts are ever queried, you have demonstrably acted in good faith with information provided by the peak government authority, who is of course beyond reproach.
Cheers - i.
Some of our armchair lawyers provide far more accurate information than a random guy answering the phone at a regulatory office, who, when he gets it wrong, doesn't make it right, nor get you off the hook!
iFly4U
Member
Yes, it should get you off the hook.
The random guy at the relevant authority speaks in the role of a representative of the organisation by which he/she/it is employed in a role to provide information on which enquirers rely. That role carries a legal and civil responsibility.
If you have relied in good faith in the best source of information, being the relevant correct authority, and have a reference number and notes relating to the conversation, a conversation which in most cases will have been recorded, you have met most necessary and reasonable legal obligations.
How one phrases a question, and how the reply is received, and then repeated to the respondent and receipt of their agreement that the repeat of their advice being correct will, in the majority of situations prior to Court action, be accepted as an act of good faith and as fair and reasonable risk mitigation prior to an act unless the advice goes beyond "what a reasonable person would do". In other words, if they say something outlandish such as "Yes, you can fly above 1000' and it's OK", you would reasonably reject that or research and seek an alternative opinion from within that organisation quoting to that other source the information which you thought reasonably to be incorrect.
Each of the terms used in this reply, in particular "reasonable", meet several tests that exclude wilful negligence and ignorance of law, which will have been disproven given that a legal query has taken place with the relevant authority and the jurisdiction of the authority should be reasonably proven during the conversation.
While some US laws have some oddities compared to UK, AU, CAN and other Commonwealth countries, the principles of "fair and reasonable", "reasonable person", "wilful negligence", "good faith", and "risk mitigation" remain almost universally constant in criminal, civil and tort law.
Cheers - i.
My bigger point was to get accurate information in the first place. I wouldn't necessarily accept as gospel anything anyone told me over the phone at a regulatory agency. Even the IRS says don't trust us over the phone! Trust but verify!
Seriously, it's time to put this thread to rest, there is so much misinformation. The FAA cares about one thing, and one thing only. Safety.
They set the rules that provide for the safety of the National Airspace System. And they educate (or at least attempt to) folks about those rules and how to fly safely. That means everything flying in the NAS from a drone to an A380.
They do not control commerce. Commerce can be used as part of a regulation to determine additional safety mitigations, but the commerce part itself is not controlled by the FAA.
When it comes to drones, all flights fall under 14 CFR Part 107 UNLESS that flight satisfies all aspects of H.R. 302, Section 349. Part 107 in the default.
Section 349 is titled "Exception for limited recreational operations of unmanned aircraft". Key word there is "exception".
You must satisfy all 8 parts of Section 349 to qualify to fly without a 107. That criteria is:
"‘‘(1) The aircraft is flown strictly for recreational purposes.
‘‘(2) The aircraft is operated in accordance with or within the programming of a community-based organization’s set of safety guidelines that are developed in coordination with the Federal Aviation Administration.
‘‘(3) The aircraft is flown within the visual line of sight of the person operating the aircraft or a visual observer co- located and in direct communication with the operator.
‘‘(4) The aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft.
‘‘(5) In Class B, Class C, or Class D airspace or within the lateral boundaries of the surface area of Class E airspace designated for an airport, the operator obtains prior authoriza- tion from the Administrator or designee before operating and complies with all airspace restrictions and prohibitions.
‘‘(6) In Class G airspace, the aircraft is flown from the surface to not more than 400 feet above ground level and complies with all airspace restrictions and prohibitions.
‘‘(7) The operator has passed an aeronautical knowledge and safety test described in subsection (g) and maintains proof of test passage to be made available to the Administrator or law enforcement upon request.
‘‘(8) The aircraft is registered and marked in accordance with chapter 441 of this title and proof of registration is made available to the Administrator or a designee of the Adminis- trator or law enforcement upon request.
‘‘(b) OTHER OPERATIONS.—Unmanned aircraft operations that do not conform to the limitations in subsection (a) must comply with all statutes and regulations generally applicable to unmanned aircraft and unmanned aircraft systems."
Obviously part of this isn't active. Specifically (2) and (7). So until those are published (the FAA is working with industry partners at this time to get those established), you need to follow the other 6.
The main qualifier for the vast majority of flights will be (1). If you are flying for ANY reason except recreational purposes, you must have a Part 107 Remote Pilot Certificate.
The FAA does not care (it's nowhere in their charter or CFRs) what you do with the imagery after you fly. If you're up flying around and having fun, and someone sees your imagery and wants to buy it, it is 100% legal under FAA rules.
If you want to go up and fly to give your friend or relative the imagery for their business or non-personal use, you must have your 107.
There is no loophole, and there is no gray area. Of all things FAA, this is one of the few that is not grey. It's a black and white regulation.
Satisfy all of Section 349, or fly under 107. Those are the rules. And feel free to sell your imagery taken under Section 349, the FAA doesn't care.
They set the rules that provide for the safety of the National Airspace System. And they educate (or at least attempt to) folks about those rules and how to fly safely. That means everything flying in the NAS from a drone to an A380.
They do not control commerce. Commerce can be used as part of a regulation to determine additional safety mitigations, but the commerce part itself is not controlled by the FAA.
When it comes to drones, all flights fall under 14 CFR Part 107 UNLESS that flight satisfies all aspects of H.R. 302, Section 349. Part 107 in the default.
Section 349 is titled "Exception for limited recreational operations of unmanned aircraft". Key word there is "exception".
You must satisfy all 8 parts of Section 349 to qualify to fly without a 107. That criteria is:
"‘‘(1) The aircraft is flown strictly for recreational purposes.
‘‘(2) The aircraft is operated in accordance with or within the programming of a community-based organization’s set of safety guidelines that are developed in coordination with the Federal Aviation Administration.
‘‘(3) The aircraft is flown within the visual line of sight of the person operating the aircraft or a visual observer co- located and in direct communication with the operator.
‘‘(4) The aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft.
‘‘(5) In Class B, Class C, or Class D airspace or within the lateral boundaries of the surface area of Class E airspace designated for an airport, the operator obtains prior authoriza- tion from the Administrator or designee before operating and complies with all airspace restrictions and prohibitions.
‘‘(6) In Class G airspace, the aircraft is flown from the surface to not more than 400 feet above ground level and complies with all airspace restrictions and prohibitions.
‘‘(7) The operator has passed an aeronautical knowledge and safety test described in subsection (g) and maintains proof of test passage to be made available to the Administrator or law enforcement upon request.
‘‘(8) The aircraft is registered and marked in accordance with chapter 441 of this title and proof of registration is made available to the Administrator or a designee of the Adminis- trator or law enforcement upon request.
‘‘(b) OTHER OPERATIONS.—Unmanned aircraft operations that do not conform to the limitations in subsection (a) must comply with all statutes and regulations generally applicable to unmanned aircraft and unmanned aircraft systems."
Obviously part of this isn't active. Specifically (2) and (7). So until those are published (the FAA is working with industry partners at this time to get those established), you need to follow the other 6.
The main qualifier for the vast majority of flights will be (1). If you are flying for ANY reason except recreational purposes, you must have a Part 107 Remote Pilot Certificate.
The FAA does not care (it's nowhere in their charter or CFRs) what you do with the imagery after you fly. If you're up flying around and having fun, and someone sees your imagery and wants to buy it, it is 100% legal under FAA rules.
If you want to go up and fly to give your friend or relative the imagery for their business or non-personal use, you must have your 107.
There is no loophole, and there is no gray area. Of all things FAA, this is one of the few that is not grey. It's a black and white regulation.
Satisfy all of Section 349, or fly under 107. Those are the rules. And feel free to sell your imagery taken under Section 349, the FAA doesn't care.
Earthman
Well-Known Member
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I would think the quoted 2015 reference is obsolete and no longer applicable.
The 2018 FAA Reauthorization Act repealed Section 336 and replaced it with new regulations. The protections once enjoyed by recreational RC fliers under Section 336 no longer exist.
As far as I know, the current FAA regs for recreational and commercial flying do not mention “intent of the flight” with respect to the commercial use of a photo. I believe that recreational flyers simply cannot give or sell a photo that will be used for commercial purposes. If intent is involved, it’s the intended use of the photo that the FAA is concerned about, not the intent of the flight.
You're correct that this is older language, but it is still currently used. The FAA UAS Integration Office is working on new documents, and until those are written and published, we still use the older ones.
The quoted legal interoperation still applies.
Many of the original protections for recreational flyers still exist - only those explicitly changed by Section 349 are different.
So are you arguing that the FAA has jurisdiction over the use of photos and videos? They don't, and never have - FAA jurisdiction covers flight in the NAS, and nothing else. They can, and have, implemented different rules for recreational and non-recreational flight, and they can point to a pattern of selling photos or video as an indication of non-recreational flight which might allow them to purse a non-Part 107 pilot for non-recreational flight. But, absent that, there is no law against selling material obtained while defensibly flying recreationally - nothing in Part 107 addresses that or gives the FAA authority over such an action.
You say "as far as I know", which is not a good surmise to start a statement.
The FAA only cares about intent of flight. The have no say so or authority about what the operator does with the photo. This is well established.
As far as I know, the current FAA regs for recreational and commercial flying do not mention anything at all about the commercial use of a photo.
In fact they don't mention anything at all about photography or the sale of imagery.
That's not surprising as their business is aviation safety, not who can and can't sell photos.
You might and there are others that feel similarly, but that doesn't mean it's correct.
It doesn't matter how often this is thrashed out in the forum, there are always hardline fundamentalist interpretations that go far, far beyond the concerns of the FAA.
As has been explained over and over already in this thread, the FAA haven't shown much interest in the commercial use of aerial imagery and have no regulations regarding it.
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I think your pretty spot on here...
An individual can film something for his own recreational purposes and use the material in his own promotional material, but can’t sell it or make anything from it. He can give it away free to anyone he chooses for their use.
This will all change in summer when the uk/eu falls in line with the rules.
Likewise, the CAA .has no rules about photos and what you do with them.
They only have rules about flying.
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