Commercial Flying Question


#1

There are web sites out there that allow you to sell photographs. People can log onto the site and view thumbnails of the photos and then purchase them if they want.

If a person were to take aerial photos around town and then put them on one of these websites for people to purchase, would you have to have a commerical pilots license to do that? I’m not talking about going up and taking specific pictures upon request, but say taking pictures of a neighborhood and then somehow letting people in that neighborhood that they could check the website and purchase those photos if they like.


#2

Yes. You would need to be a Commercial certificated pilot.

From AOPA ePILOT Volume 9, Issue 31 August 3, 2007

*Here’s a question asked by an AOPA member who contacted our aviation services staff through the AOPA Pilot Information Center. Test your knowledge.

Question: I have an aerial photography business and have always had a commercial pilot fly the airplane while I take pictures. I recently became a private pilot, and now that I can fly an airplane myself, I was planning to fly the aerial photography flights solo. The commercial pilot says this is not legal. Can you tell me why?

Answer: Although the regulations that govern aerial photography leave some room for interpretation, there are some scenarios that are clearly legal and some that are not. FAR 61.113(b)(1) states that a private pilot may act as PIC of an aircraft in connection with any business or employment if the flight is only incidental to that business or employment. Clearly, your aerial photography flights would not be merely incidental to your business, because the photos are expressly to be sold or used in your business. Therefore, you, as a private pilot, could not legally be PIC of those flights; the PIC must hold a commercial pilot certificate. So, you can obtain your commercial pilot certificate and legally fly the aerial photography flights, but until then, you need to fly with a commercial pilot. More information on aerial photography is available online.*

Hope this helps…


#3

I don’t believe so, especially if you are only a passenger taking the pictures to sell. Even if you are the pilot, you shouldn’t have to have a commercial rating, although you should be, especially if you are the only pilot on-board, be paying more attention to flying the plane rather than taking pictures.


#4

Overall I would agree with azav8r that this could be defined by the FAA as a commercial flight requiring a commercial certificate. However, as former President Clinton showed us well, the law depends on definitions (“it depends on what the meaning of is is”). In this case, if you applied the IRS definition of business vs. hobby (makes a profit in at least 3 of the last five years), I expect that your part time photography would not earn enough to make a profit when you take the costs of flying into account - so the IRS would call that a hobby rather than a commercial business. Now, do you think one branch of the government, the FAA, would apply the same definition as another, the IRS? If yes, then your only engaging n your hobby and don’t need a commercial certificate.

One other point, the commercial certificate is among the easier/less expensive ratings to get and it will help make you a better pilot.


#5

As CAFlier points out be very wary of definitions… From experience, the FAA and the IRS work from very different sheets of music. The two branches have no regard for the rules of the other and can be very contradictory in some cases. Said simply, no matter for what purpose, when operating an airplane (or any aircraft) always consider CFR Title 14 first and foremost. No slight towards you on this
CAFlier but the FAA could care less what the IRS thinks about operating aircraft.


#6

No argument from me on that point, just trying to show that this arguably falls into a gray area, which means that he needs to decide what level of risk he is comfortable taking. We’ve already covered the zero risk options. Talk to a real aviation attorney if you want to get an informed opinion.


#7

I ain’t a lawyer, nor do I play one on TV. I’ve only been certified as a private pilot for less than three months, so take what I say with a grain of salt or whatever…

If YOU are the pilot, and taking the pictures, then I think you’d definitely need a commercial certificate - BUT there may possibly be a loophole of interpretation.

In the AOPA example cited by azav8r, the person mentions that he (or she) has “always had a commercial pilot fly the airplane while I take pictures.” This person COULD have had a private pilot fly the plane for him/her IF the person and the pilot shared the expenses of the flight equally (or if the pilot payed for more than his share).

Another example: IF I was a photographer who knows a private pilot, and I just ride with the pilot, and even tell him to take me to this neighborhood and then that one while I take pictures that I’m going to sell, as long as I don’t pay the pilot MORE than half of the expense of the flight, then this is all well and good. It’s all about pilot compensation. As long as the private pilot is not compensated for more than his share of the flight’s expenses, then it’s all well and good.

SO - Bearing all of this in mind, what if I - as a private pilot - go up and take the aerial photos MYSELF and sell them, AND I CAN PROVE that the proceeds from my aerial photo sales do NOT exceed more than half of my flight expenses? HMMMMmmmmm… morally, this sounds like a fair arrangement - you’re just splitting hairs as to who pushed the button on the camera. You COULD’ve had someone fly with you and take the pictures, and you would not have received any more in compensation.

Still, I think the FAA would raise a stink on the issue! What’s the penalty if the FAA wins the case? - I don’t know… would they temporarily suspend your medical or have you permanently turn it in? …or would they just fine you for the infraction? Is the reward worth the risk?

As was said earlier, just go get your commercial ticket! Nothing says you have to get your intrument rating first - you can have a commercial certificate without an instrument rating.


#8

Although I stayed at a Holiday Inn Express this month, I seek the legal advice of those retained by our organization. That being said the intent of FAR 61.113(b)(1) in this case is of the sale of photographs regardless of the proceeds being rolled into the expenses of the aircraft. All the FAA would care about is that you were paid for non-incidental use of the aircraft.

As CAFlier and NeedleNose have mentioned risk…Absolutely… assess the risks and determine what you are willing to shoulder…rules (alot of them being very silly ones) are stretched all of the time. Just remember that if something ever happens and the FAA or (heaven forbid) the NTSB get involved, if you’re operating outside of the regs there could be a certificate suspension, an insurance company will go “whew” because they didn’t have to payout on a claim, litigation with the aircraft owner, and on and on…

Ditto what CAFlier and NeedleNose said…just go get the Commercial certificate… Oh, and by the way, there are alot of caveats to operating with a Commercial certificate too…but that could be a whole other thread…


#9

Thanks for the info. This was just a thought and I don’t think I’d do it. Clearly this is something that would never turn a profit so under IRS rules it’s a hobby and not a business. But like the other person said, the IRS and FAA are two different animals.

I do think this would come down to legal semantics. I’m a private pilot and I’ve taken many photos from the plane. What if somebody saw one of those photos after the fact, and offered me $10 for it? Would I be in trouble with the FAA for selling it? Probably not as this clearly wasn’t commercial flight. But the guy in the example provided was running an aerial photo business so clearly that’s something that would require a commercial license. But what if I’m going to take photos anyway, and I decide to put them on a web page and let my neighbors know they can buy a print from the web page? I would think it probably depends on how big I make this little hobby.


#10

I think that’s the gotcha, when you “let my neighbors know they can buy a print from the web page.” At that point you are “holding yourself out.” In the eyes of the FAA you are clearly in the act of commerce.

I wouldn’t risk it, the cost of defending yourself would certainly exceed any amount of operating cost you recouped selling photos. I’m not sure if they could take certificate action or not (can someone else answer that).

On the other hand…a friend of mine from NJA, his dad had an aerial photography business for decades. He supported his family with it, and never had a pilots license :confused: Yes he did the flying and even had a remote 80mm mounted on the wing. But then again that was in the 40’s and 50’s, times do change. :cry:


#11

With Google earth out there who buys aerial photos anyway? I know people always like have aerial photos of their house or their ranch, but I can’t see people willing to pay enough for those photos to make it profitable. Law enforcement wouldn’t be a good market as they have their own aircraft or could borrow one. Who buys aerial photos anyway?


#12

Exactly… msmith1199, your photography may pass muster as a hobby to the IRS…But the FAA will see it as a for profit activity that would require a Commercial certificate.

Here’s an example of how FAR 61.113(b)(1) works… You’re a Private pilot and you’re PIC flying around taking photos of your neighborhood. you subsequently post those photos on the internet as available for purchase. You’ve just violated the reg in the FAA’s eyes because the sole purpose of the flight was to take the photos that are now for sale.

However, say you hired a Commercial pilot with aircraft from…wherever…and this pilot and aircraft were operating under a Part 135 Certificate, (This is one of those caveats of a Commercial cert. that I mentioned earlier) and the photos are taken by you as a passenger. Now, you as a Private pilot acting as PIC fly an airplane from Point A to Point B for the purpose of selling/advertising your photos. That meets the guise of FAR 61.113(b)(1) because your travel was incidental to your photography. In other words, the travel was for the promotion of your photos and not the creation of them.

I know that it sounds ridiculous but welcome to the wonderful world of the FAA…where their motto is “We’re Here to Help You”…

Look msmith1199, It’s not my intent to discourage you or to pretend to be a “know it all” (as I’ve been accused of elsewhere in this forum)… You posed a question and I am providing information from my experience in interpreting CFR Title 14 to be helpful in your decision making.

By the way, post some of that work of yours… :slight_smile:


#13

Private investigators, real estate developers, agents, lawyers, surveyors… just to name a few off the top of my head. While Google Earth and TerraServer have put a hurtin’ on the industry, their images are outdated, and there is no rural coverage.


#14

There’s certainly a market…Google Earth doesn’t provide very good up close detail, and in some areas no closeups at all.

Who buys aerial photos anyway?

Municipalities and developers…and what NeedleNose said…

There is a Cessna 207 based at KPHX that is set up with a system that shoots through the floor of the aircraft…it has its exhaust and engine drains routed around the sides of the airframe to minimize any degradation of photo quality. And the State of AZ uses a Turbo Commander with a floor mounted camera system. One of their uses is to monitor open mining operations and determining the amount of material moved when accessing land lease fees.

Those are specialized applications, but there’s always someone interested in good aerial photography.


#15

I think that there are three different questions here: 1) what is the likelihood of the FAA finding out about this activity, 2) if they found out what is the likelihood that they would take enforcement action and 3) if they took action what is the likelihood that they they would prevail.

  1. Is probably related to how high or low profile this activity is. If you fly around taking pictures for fun, put a few on a web site without using your name and don’t sit around the airport talking about how you used you plane to take photographs that you sold, probably not very likely. I’m not saying that it is right or wrong - just commenting on whether the FAA would find out.

  2. This is highly variable in my experience. Most FAA people that I’ve dealt with are pretty reasonable and would handle a situation like this with a simple conversation (if you were cooperative), but there are certainly some who are capable of taking any little thing and making a big production of it. So my answer is that it could range anywhere from them telling you not to do it again to a full enforcement action with the average closer to a “don’t let this ever happen again” lecture. I’d like to hear what others have experienced on this point.

  3. While I think you would have a reasonable legal position to win in this situation, it could be very expensive to find out. Good attorneys specializing in aviation law usually don’t come cheap. It would cost a lot less to get your commercial certificate.


#16

CAFlier, We may have disagreed elsewhere in this forum…however, I’m with ya on points 1. and 2. of your last post here. Most likely some harmless photography will not raise the ire of the FAA as long as an incident or controversy doesn’t arise…

Regarding your last sentence of point 2… As a Part 135 manager, whenever I would “test the boundaries” of the regs it would result in an educational/clarifying conversation with the POI. A good rapport with the FSDO is a valuable thing… :wink:


#17

I used to fly an aerial photographer around all the time. (yes, I was being paid and yes, I was a commercial pilot) Most of what we shot were building lots under contruction, landscapers’ property, and other commercial businesses. The photos we were able to take were quite amazing, WAY better than even the ‘pay-for’ satellite based images. (unless you’re working with a couple square miles of property). Most of the images were taken from less than 1000ft, sometimes less than 500ft. :confused: (I never said I was intelligent… Slow flight, stall warning, full flaps, windows open, turns around a point at 500ft in a 152. Builds character. ) :open_mouth:

Anyway, the other side of this thread…
I totally wouldnt even worry about this as a commercial activity. If you upload photos to Flikr and someone buys them, first of all there is no record to the FAA of people buying your photos. Second, there is no way for the FAA to know who was flying that plane, if in fact they were taken from a plane at all. Third, they have MUCH better things to do than to worry about this.


#18

This is the type of activity I think the commercial license reg is for…

An acquaintance has a contract with an electric power transmission company to fly along their high-tension power line routes and videotape them from low altitude. He flies several days a week and tapes as many as 500 miles of power lines a day.

I’m told that videotaping the lines is a risk-management SOP and that the tapes are permanently archived in case of litigation.

I can imagine that the most boring job in the world is that of the guy who has to watch these videos each day to detect potential problems.

I’ve never asked whether this pilot has his commercial license, but in light of all the discussion above, he’d certainly be at risk if he didn’t have one.


#19

IIRC if you get paid to pilot an aircraft as part of your job, other than as an instructor, you must have a commercial license.


#20

No you don’t need to have a commercial pilot license to take the pictures. You do need on if you want to make revenue from the pictures ie: sell them! To the previous post you DO need a commercial pilot license to
even receive your instructor license let alone instruct with it.
If you are going to take the pictures and sell them as a private pilot, just dont tell anyone you took them.