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You would think so but I don't believe this is the case. If a photographer wanted to take aerial photos that he was to sell and offered to pay you to fly him--yes, you would need a commercial license to accept payment. If you wanted to sell photos that you took in your own plane, no commercial license is required as the FAA has ruled that the flying is only incidental to your taking pictures. Do a search on the AOPA board as this issue has been discussed before.

Here's a letter I found from the FAA Chief Counsel concerning the point I brought up in the previous post:

May 11, 1995

Mr. Pritchard H. White
4075 Kitsap Boise, ID 83703

Dear Mr. White:

This refers to your letter of May 5, 1995, requesting an interpretation of Section 135.1(b)(4)(iii) of the Federal Aviation Regulations (FAR) as it applies to the operations, which you propose to conduct.

You indicate that you intend to use your airplane in aerial photography and survey work, sometimes acting as the photographer yourself, and at other times either hiring a photographer or providing an "aerial platform" to be used by other photographers.

You further indicate that your proposed aerial survey work would include environment assessment, wildlife and natural resources surveys, and airborne collection of air samples for meteorology studies.

Your specific request is for an interpretation as to whether these proposed activities would fall within the "aerial photography or survey" exception to the applicability of Part 135 of the FAR. You indicate that your own interpretation is that these operations would fall within the exception, thus permitting you to conduct them under the provisions of Part 91, rather than the more rigorous provisions of Part 135. You ask that we confirm whether your interpretation is correct.

From the information presented by you, it would appear that the sole purpose of your flights would be for aerial photography and survey work. If this is the case, then your operations would appear to fall within the cited exception, and may be conducted under the provisions of Part 91 FAR.

In the event your proposed operations may involve the carriage of passengers from one point to another in addition to aerial photography or survey work, the answer we have provided to you would change. The Agency has consistently interpreted Section 135(b)(4) so that if an aircraft lands at a site other than its origin, the aerial photography or survey exception does not apply. This is due to the fact that the flight takes on the "dual purpose" of both aerial photography or survey and transporting passengers from one point to another for compensation or hire. In this case, the rules of Part 135 would need to be complied with.

2

One further point requires clarification. You have not indicated what type of pilot certificate you hold, i.e., private pilot certificate, or a commercial pilot certificate, or higher.

To the extent that your operation would be in furtherance of your own business of aerial photography or survey, and you are not carrying persons or property for compensation or hire, then you may do so holding a private pilot certificate. However, to the extent that your operation would involve operating your aircraft as an aerial platform for other photographers, etc., for compensation or hire, you would need to be the holder of at least a commercial pilot certificate in order to act as the pilot.

We hope that this has adequately answered your questions. If we can be of further assistance, please do not hesitate to contact us.

Very truly yours,

Leland S. Edwards, Jr.
Attorney

The "is aerial photography" commercial use of an airplane has been discussed in a lot of different forums.

Suppose your wife, a passenger in your plane, enjoys weaving baskets. While you are flying, she weaves a basket. Upon landing, a friend likes the basket and asks to buy it. Your wife says something like, "I get real inspiration for my basket weaving why flying with my husband." She sells the basked. Is that commercial use of the plane?

You say to yourself, hey this is a good way to make money. I'll advertise for inspirational flights for other members of her basket weaving club. All they have to do is pay me a portion of what they earn when they sell their baskets. Is that commercial use of the plane?

Suppose your wife, a passenger in your planes, enjoys taking photos. While you are flying, she takes some photos. Upon landing, a friend likes the photo and asks to buy it. Your wife says something like, "I get real inspiration for my photos when I'm flying with my husband." She sells the photo. Is that commercial use of the plane?

You say to yourself, Hey, this is a good way to make money. You advertise inspirational flights for other members of your wife's photo hobby group. All they have to do is pay you a portion of what they earn should any of the photographs sell. Is that commercial use of the plane?

The answers, in my opinion, are no, yes, no, yes.

And in my opinion I would agree with you.

I have run an aerial photography business in the past with a PPL. I had a system that allowed me to take the pictures and fly the plane safely. The plane was a platform for taking pictures that clients hired me to take. I never billed for my time as a pilot or for the airplane. I sold photographs and photo packages. Like any product you sell the photos were priced appropriately for their production costs. The client hired a photographer not a pilot. I could have done the same thing if they hired me to take pictures and I in turn hired a commercial pilot. I would then have to price the photographs to cover the cost of the commercial pilot. In my case, I saved my clients money because I didn't need to hire a pilot.

Oh, and yes I advertised as an aerial photographer, and yes I cleared the whole thing with my local FAA FSDO before I flew my first mission. Local interpretations can very so I recommend checking in with your FSDO first.

My interpretation is a commercial rating is required.



I find it interesting that you relied on a government employee to protect you from the government!

Nothing sends a chill down my spine faster than the statement

"I'm from the government and I'm here to help"

John KLWM

I'm sorry John, but your interpretation is wrong. There is no variance in the way the FSDOs look at aerial photography. The FAA chief counsel is on record explaining it and unlike many rules subject to individual interpretation, the FAA has been consistent on this one.

Part 119 of the FARs talks about this in the beginning.

John,

I work with the FAA every day as a normal part of my job. In my experience they are helpful, and professional. As a normal course I would agree with you in having a healthy mistrust of government (more and more these days). However, over my years working with the FAA I have found that for the most part they are like us. People who love aviation and wanted to work in the field, or to continue working in it. They are pilots, air traffic controllers, aviation mechanics etc... They are perfectly willing to give you advice and tell you ways of doing things that will keep you out of trouble (Saves them paperwork).

I find it interesting that anyone would consider starting an business related to aviation WITHOUT meeting with the your local FAA representatives BEFORE you start. As you can see from this thread there is a lot of confusion over what you can and cannot do as a Photographer with an airplane. The FARs are not always clear and sometimes they contradict themselves. So for me it was logical to run it buy the FAA before I did anything that could be questioned.

I am not going to sit here and tell everyone how to run an Aerial Photography business with a PPL, nor am I going to tell everyone they should. But it can be done safely and legally. I've done it.

There are limitations and some jobs I had to turn down. Photographers wanted to hire me to take them up, clients wanted to hire me to take them up... I couldn't do it. They could not hire me as a pilot in any way and they could not hire my airplane. They could only hire a Photographer and buy photographs. They could tell me what kinds of photographs they wanted to buy and what they wanted photographed. The methods involved are up to the photographer.

I recommend that anyone interested in doing this, do their own research and run your business plan buy the FAA -before- you do it. Get it in writing, letter or email will work.

As far as interpretation is concerned. You will find that the different regional offices can vary greatly on their interpretations of the FARs and ACs, (maybe not on this particular topic) Also, regulations and interpretations change over time. So check first.

My $0.02 take it or leave it.

Advertising flights to make money would require the pilot to have a commercial rating and would move the airplane into the commercial category (insurance, 100 hour inspection, etc.) -- my opinion.

Here's another example to consider: I think we've all seen the "What I learned from that", "never again" and articles such as "I flew to Clinton in a 150" , and articles such as "Fun flying the new Legend Cub" or "How I made my first solo flight after only 7 hours of training." Each of these have been written by student pilots and PPL. Yet, once they complete the flight they can write an article and take photos during the trip, and sell the article and photos to a newspaper or magazine. That would not (again, in my opinion) make the flight a commercial one.