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What constitutes "commercial use"?

Discussion in 'General Discussion' started by Phil-79, May 19, 2015.

  1. Phil-79

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    I know, another thread about commercial use of a Phantom; I apologize in advance. I made the mistake of not researching ahead of time, and now I have a brand new Phantom 3 that I can't use for what I intended to use it for. Like what I would assume to be the majority of Phantom users, I do not have a pilot's license. So as the topic states, where is the line between non-commercial and commercial use drawn?

    Scenario A: I shoot flyovers for a local golf course and charge them for it. Illegal - got it. But...

    Scenario B: I shoot flyovers for a local golf course and give them the footage for free. They use the footage on their website to promote the golf course. Illegal?

    Scenario C: The golf course buys a Phantom and shoots their own flyover to promote the course. Illegal?

    Scenario D: I buy a Phantom on my own for personal use. I offer to shoot some video for my employer for use in a corporate video. Illegal?

    Scenario E: I take an aerial photo of a listing for my realtor buddy. I don't charge him, but he is using the photo to help sell a house. Illegal?

    I'm starting to think I've made a $1300 mistake and that I'm not going to get much use out of my Phantom until the FAA figures this out. I never thought a tiny camera attached to a 3lb plastic quadcopter would require a pilot's license to fly 50' off the ground in order to make a few bucks, but what do I know.
     
  2. Buzz313th

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    Commercial use.... as per the FAA's definition regarding a Commercial Pilot Certificate

    If you operate your drone for "Compensation" or "Hire".

    Compensation means, if you are paid to fly your drone...

    Hire, means if you had an agreement with someone for services rendered.

    If you didn't get compensated for "Drone Flight" and you did not have an "Agreement" to fly the drone, then it would be difficult to say you were flying it commercially.
     
    #2 Buzz313th, May 19, 2015
    Last edited: May 19, 2015
  3. DevildogSoldier

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    Case law will tell you how these would likely play out in court.

    In one case I've heard about (didn't research, because I didn't care enough), FAA vs. "Droner" (I'm copywriting that!), was dismissed because the droner provided his owned footage to the third party for no fee. This exchanged ownership of the footage to the third party. Third party then hires droner (who also happens to be a photographer) to process footage for a fee.

    Those that will argue that it is a "loophole", consider this...

    If I provide you free video and photos of your golf course at no cost, then you hire someone else to process what you now own, it would not be illegal. So how could it be illegal if you turned around and hired me?
     
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  4. Buzz313th

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    Golf Course Manager = "G"
    Drone Operator = "D"
    Judge = "J"

    J : Mr. D, I understand you are standing before this court in defense of providing Commercial drone footage to Mr. G without the proper 333 waiver and without holding a Pilot Certificate?

    D : Yes that is correct Mr. J. But I did not provide Mr. G with commercial drone footage.

    J : Ok Mr. D Please explain.

    D : Well, I have known Mr. G for some time and I asked him permission to fly my drone over his Golf course to take some video footage for my own personal use as a recreational drone operator. The footage looked so cool, that I showed it to Mr. G a few days later over some beers at the Bar at his club. He agreed it looked amazing. He asked if I would give it to him to show to his son who has been wanting a drone for a while. So I gave him my footage. A few days later, Mr. G asked me if he could use it as marketing material for his golf club. I said, of course, Its your footage. Then a couple days later, Mr. G asked me if I knew anyone that could put some titles on the footage with the logo of his Golf Course. I said I can do that.. But I would have to charge you for the post production work on your footage.. Mr.g and and I struck up a contract to employ my services as a post production editor. A few days later I delivered him his footage with titles on it.
     
  5. Buzz313th

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    Too funny, we posted at the same time...
     
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  6. DevildogSoldier

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    With the golf course even! This proves I need to get out and play a round.
     
  7. Buzz313th

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    But all this goes out the door on bigger jobs.. Where the employer or "Client" wants more creative control and will require you to maintain liability insurance for your equipment and services...

    Being a certified or "Legal" commercial drone operator will be the difference between shooting for pennies or actually making a good living and building a professional reputation as a drone cinematography firm..

    The guys shooting the drone footage for Commercial, Music Videos and TV Feature films are doing extremely well. But they are also leaps and bounds ahead of everyone else, both in investment, R&D and experience...

    The difference is like...
    Selling lemonade on the curb of your residence... Or opening up a Lemonade franchise nationwide..
     
  8. N017RW

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    I need to find the source of this quote I saved a while back, but in the mean time...

    "What matters is the intent of a pilot at the time of flight, not whether money was made off the footage or photography later. “The decision on regulatory compliance is made at the time of flight,” says Loretta Alkalay, aviation attorney and adjunct professor at Vaughn College of Aeronautics—meaning that even if a hobbyist later makes money on footage shot in a “for fun” flight, it can’t later be deemed “commercial,” and vice-versa."
     
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  9. DevildogSoldier

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    And, as it has seemingly become the process du jour in the US, you'll be guilty until proven otherwise.
     
  10. Buzz313th

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    Of Course...

    And frequency of the same situation will prove intent.
     
  11. Phil-79

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    Thanks for the input, everyone. So the impression I'm getting is scenarios B-E would all be legal since nobody is paying me specifically to fly my drone. The area that gets someone in trouble with the FAA is when they say "Hey, I'm an aerial photography service, hire me".

    There's a local business that advertises themselves as an aerial photography service. They list on their rates page that the raw footage is free, but editing costs extra. This seems to me like a visit from the FAA waiting to happen, based on what's been said in this thread about intent.
     
  12. ianwood

    ianwood Taco Wrangler
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    Whether or not you charge for it directly or hide the charge under some other service is immaterial.

    If you are commissioned to fly your drone either for a fee, barter or otherwise, it is commercial. If you do it of your own accord as a personal endeavor, it is not.
     
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  13. SteveMann

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    This topic is much older than personal Drones as private pilots have tried every ruse possible to avoid crossing paths with the FAA while getting paid to take aerial photos. The FAA has heard them all. The most common ruse is "I wasn't paid to fly, just to edit the photos/videos." And the FAA sees right through it.

    Scenario B: I shoot flyovers for a local golf course and give them the footage for free. They use the footage on their website to promote the golf course. Illegal?
    Yes. The FAA doesn't care who benefits from the flight.

    Scenario C: The golf course buys a Phantom and shoots their own flyover to promote the course. Illegal?
    How the video is used would make a difference. For example, if the owner uploads a video to his personal account on YouTube, he is probably OK. If he uploads it to the business YouTube account, he would be in violation.

    Scenario D: I buy a Phantom on my own for personal use. I offer to shoot some video for my employer for use in a corporate video. Illegal?
    Oddly, no. The FAA says that if the flight is incidental to your employment then a commercial license is not required. If you make the same offer to someone not your employer, then it would be illegal.

    Scenario E: I take an aerial photo of a listing for my realtor buddy. I don't charge him, but he is using the photo to help sell a house. Illegal?
    Yes. Remember, the FAA doesn't care who benefits from the flight. They don't care if there is any money exchanged, profit or lack of it.

    For the pilot, what the FAA will look for is "Holding Out". This is a clear intent to make photos or videos as a business.

    Here's a letter from the FAA that may help (or not since the letter indicates conflicting opinion within the FAA): [link]
     
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  14. SteveMann

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    Remember the Florida hobby flyer who was sent a letter by an FAA inspector because the video was on YouTube with ads. I.E. monetized.
    By a strict, analy strict interpretation of the rules, the FAA inspector was correct. However, the public embarrassment made the FAA back off:

    Article: FAA Concedes Merely Posting Drone Video Does Not Violate Federal Regulations

    "The directive reinforces for FAA inspectors that "electronic media posted on the Internet is ordinarily not sufficient evidence alone to determine that" someone has unlawfully flown a UAV. It instructs inspectors, before taking any enforcement action, to gather other evidence that the person posting the video actually flew a UAV unlawfully."
     
  15. Phil-79

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    Looks like the Phantom is going back to the store until the FAA figures this out. It's ridiculous to me that they're spending resources going after the violations rather than fixing the regulations to where they make sense.

    I'm not saying anyone should be able to go out and start an aerial photography business - I'd gladly pay for training and certification if that's what it came to. But the fact that you're required to be a licensed pilot to fly a plastic quadcopter commercially is asinine.

    My fault for not doing the research before pulling the trigger. Lesson learned. Thanks again for the input, everyone.
     
  16. Andrey320

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    I'll give you $500 and pay for shipping...?
     
  17. GoodnNuff

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    And in the end, your footage, that you shot, still ends up being used for commercial purposes. Now the court will decide whether it is you or your buddy that will be fined.
    That is how I see it playing out.
     
  18. ianwood

    ianwood Taco Wrangler
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    Actually, the FAA has indicated that material shot for personal use doesn't prevent it from being licensed for commercial uses after the fact. As is the same for other types of amateur works done without location permits or other licenses.

    I get approached all the time by people who want to use my footage.
     
  19. Meta4

    Meta4 Moderator
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    But are they spending resources going after this sort of thing?
    The FAA doesn't have the resources to chase people that take a few real estate photos and I haven't heard of any prosecutions.

    It's completely laughable that the FAA currently require a pilots license to commercially take photos that are completely legal for recreational flyers.
    It's also laughable that they made such a ruling and expect it to be obeyed.
    Plenty of flyers out there make a few dollars but ensure that they fly safe and stay below the radar.
     
  20. Clipper707

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    Probably not the source you're thinking of but this also covers intent.
    http://dronelaw.net/post/118327385407/its-official-using-drone-captured-news