When is a flying operation classed as commercial?

General Drone Discussion
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As we have had so many discussions on this subject I thought I would contact the CAA to try and get some clarification, giving them some scenarios.

This was not as easy as I thought it would be. However, after a little pushing, I got the following response.

My question was, “I would be very grateful if you would provide clarity as to which of the following situations would be classed, by the CAA, as flying for a commercial purpose and would therefore require the drone pilot to have a PfCO.

I then gave 4 scenarios:

Example 1. A hobby photographer flies a drone at a UK location to take photographs and video. Posts some images on their social media site ( Instagram / YouTube). Someone offers to pay to use the photograph for a commercial publication.

Primary reason for flight was not commercial and no intent to sell images at time of commencement of the flight - commercial benefit comes later.

Example 2. Hobby photographer flies a drone at a UK location to take photographs \ video. Any good images from the flight will be uploaded by the photographer to a website where they have other images for sale which have taken from the ground cameras. The sole purpose of the website is to sell photographs ( Picfair / Alamy etc).

Primary reason for the flight was not, in itself, directly commercial, but the photographer is always hoping to capture a photo / video they may be able to sell, in the same way that they have with photographs taken on the ground.

Example 3. Professional photographer (not a holder of a PfCO holder) flies a drone at a UK location whilst on holiday to take photographs \ video. They capture a good shot and decide to sell on their own website, where they also sell with their other ground taken images.

Primary reason for flying was not commercial, in itself, but professional photography uses images as a commercial product subsequently.

Example 4. Professional photographer (not a holder of a PfCO holder) flies a drone at a UK location in order to take photographs to sell on their own website, and to use in a calendar they will sell. They do not have a paying client. They upload photographs,obtained and sell from their website. One photograph will be used in their calendar which they sell.

Primary reason for flying at commencement of the flight was to take photographs that could be sold by themselves individually and as part of a calendar.

I received the following response which the respondent knows I am posting on GADC.

Every situation should be judged on its own merits and it is not the responsibility for the CAA to determine if an operations is commercial or not. It is the responsibility of the operator and if necessary the legal system.

It is not possible for me to unequivocally state if the examples are commercial or not but from the information provided I have given some guidance.

Example 1: Non-commercial (the data has not been contracted and is posted on recreational sites, the intent was not to make money)

Example 2: Commercial (is offering a commodity that is available to the public for valuable remuneration)

Example 3: Commercial (is offering a commodity that is available to the public for valuable remuneration)

Example 4: Commercial (is offering a commodity that is available to the public for valuable remuneration)

The CAA does not offer legal advice.

UAS Technical Surveyor, UAS Sector Team, Civil Aviation Authority

Now I know we can now try lots of variations on these scenarios and I know that don’t cover everything. Much was based around what I was seeing professional photographers on YouTube doing, and I was interested on how they might stand.

Finally, I get the impression that the CAA are not really interested to much in this ‘grey area’ and are not, at present, actively looking for ‘breaches’ of the rules.

This might change, but has anyone heard of anyone getting into trouble for this? I know of at lest one professional photographer who doesn’t have a PfCO but sells images on his website including shots from drones, and no one seems too worried.

Probably because the ‘commercial’ has be pulled from general aviation, where the criteria is much easier to understand. It was never designed specifically for the drone market and I think may yet change - though not sure which way!!!

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Fabulous bit of research.
I was pondering exactly the same and came to the same conclusion that the commercial aspect of it is more for general aviation rather than drones.
I could never understand why on earth the CAA was bothered about whether a flight with a drone was for commercial reasons or hobby, surely the flight has to be safe regardless of intention of why it was taking place. If the CAA are serious about safety then it shouldn’t make any difference if your photos are monetised or not for the reason to fly.

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Thanks @Brian

I think the mean reason for the focus on goes back to the earlier days of drones where the commercial need put extra demands on drone pilots to do more and more for filming etc, saving tv companies and news companies from huge helicopter costs. The airframes used by these companies are much heavier and dangerous due to the batteries which can explode on impact with the ground from a height.

Also drones from earlier days didn’t have the same level of stability / control as we do with the current DJI platforms, and hence so many flyaways. I spoke with an the state agent who lost 3 x phantom 2s with flyaways in a year!

Now the huge growth in sales and improved quality of the ‘prosumer’ drones like the Mavic2 is blurring the edges between hobby and business drones. Whilst the Mavic 2 is not of a standard to be used for professional filming for tv and film (yet) they are getting used more and more used for commercial work such as site surveys (buildings! Construction sites and agricultural) as well as by professional photographers.

I don’t think there will be any motivation to change at the moment as there is such an anti-drone vibe in the media, but maybe once people get more used to drones?!

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I remember the CAA once had a rather blanket statement with regards to commercial drone work.
It basically stated if you are better off in any way after having used your drone, then you are deemed to have carried out commercial work. So this could even include increased traffic to your website or attracting more customers to your B&B, etc. An example given there included getting a free drink!
In this light, even the first example would be deemed as commercial work, since a purchase was made. By my understanding, the only way the first example avoids the need of a PfCO is if the drone pilot gives the aerial footage to the consumer for free.

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It has never been the case that a flight can be retrospectively deemed commercial. It has always been about the intent and anticipations when the flight is planned and commences.

You cannot anticipate a fluke sale of the video/photos at that time … nor at any point for weeks/months afterwards before it happens.

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Agreed, but what I’m getting from the vague definition given by the CAA is that you have operated commercially the minute you accept remuneration for the drone footage, even if the initial intention was not for commercial purposes. So even if you sell your footage years after it is taken, and you are not a PfCO holder, then you have broken the law.
Think of it this way, how do the CAA know for sure that you didn’t initially intend to sell your footage later? Simply because you say so? No governing body would accept your word as proof of noncommercial intent.

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You are overlooking …

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It is all about ‘your intent’ at the time, and bear in mind, the above is an opinion from the CAA, which they know is posted here. I did suggest the need update their FAQs on the CAA site with more detailed guidance.

Remember, It would be for the CAA to prove your intent was commercial, not the other way round.

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I see, so the onus lies first and foremost with the CAA not the drone operator? That clears up a lot then

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Innocent until proven guilty, which is one of the basic premises of law.
So it would be incumbent upon the CAA to prove it.
Having said that, and having spoke to them in person, they would rather educate than prosecute. I have found them to be very fair minded.

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Or as my big boss tells me ’ It’s easier to ask forgiveness than it is to get permission’

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I agree, it shouldn’t make any difference if its commercial or not. If you are flying as a hobby you could still put peoples safety at risk just as much as in a commercial job.

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This is an old discussion I know, but can I pose another question on the same subject, even though I think I may already know the answer?
Now I have more time on my hands I’m re-discovering my mojo for hobbies/pastimes, still photography and aerial cinematography being two of them.
I hold insurance as a hobbyist, but would like to advance eventually for commercial work. In the meantime for practice and to fine tune my videos, if I accepted work on a “no fee and no charge” basis, would this be considered illegal? No remuneration would change hands, so my thinking is that it wouldn’t be, though I do have doubts.
Thanks in advance guys

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Since the regs changed the only question you need to ask yourself is: Am I undertaking this flight as a hobbyist?

If the answer is no, then you need commercial insurance.

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Which was my thinking and as long as there is no financial gain, it would be reasonable for any expenses to be recovered from the client. This is looking to be viable.

I’ve reached out already gained some interest from different sources, but was unsure of my position.

Thanks for your input PingSpike

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I fail to see why the CAA should care one way or the other. Surely they couldn’t give a toss whether it’s commercial or not. As has been mentioned their sole concern is and quite rightly should be, the safe use of the airspace it controls and not whether Bob’s Photos has made a few bob selling prints of the Harry Potter viaduct.

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