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.