We have all seen them—videos of chimps swatting down quadcopters with branches, majestic photos of natural scenery taken from a bird’s-eye view, and even shots of alleged criminals in action. In contrast to the comic book heroes who searched tirelessly for that perfect photo to grace the cover of the local newspaper, many of the images we see on the news today are harvested by the public. And, many of the most-dynamic images are obtained by using drones. As one might expect, when such images are in demand, currency is often exchanged. This has raised questions regarding where to draw the line between commercial and hobby operation of drones (technically called “Unmanned Aircraft Systems” or “UAS”) and when the media may pay for images gathered by such operators. The FAA recently issued an opinion letter addressing these questions.

Unsurprisingly, the FAA opined that commercial media may only use UAS to gather images if the FAA approves the operation. However, the FAA made special efforts to distinguish between incidental images gathered by hobbyists (under the Special Rule for Model Aircraft of section 336 of the FAA Modernization and Reform Act of 2012) and images gathered with the intention of receiving compensation. The FAA stated that its regulatory focus is not on the person who purchases an image or video from a UAS operator but, rather, its focus is on the UAS operator itself. Thus, the FAA stated that the purchase of an image by a media outlet would not interest the FAA as long as the media outlet did not have operational control over the UAS.

Carving out the distinction between hobbyists and commercial operators, the FAA focused its analysis on the intention of the operator. The FAA stated that if the UAS operator’s “primary intention” is to obtain images to sell, that operator would need FAA approval. However, if the operator gathers images and happens to sell a few, the operator’s intention may be determined by the frequency at which the operator sells his/her images. The FAA did not provide a number that would set the threshold for commercial operators. But suffice it to say that, the more an operator “unintentionally” gathers images and sells them, the more scrutiny that operator will get. As usual, the FAA made it clear that each case would be considered on its own merits.

 

A copy of the FAA opinion letter discussed in this post is available at: http://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc200/interpretations/data/interps/2015/williams-afs-80_(2015)_legal_interpretation.pdf