Am I considered a commercial photographer?

DesertDarlene · #1 04-10-2012, 11:00 PM

Hi everyone, it's been a long time since I've posted in the legal forum.

This has been on my mind all day. I make a little money on the side from writing articles and, sometimes, selling objects with my photos and artwork on it. My subject is almost always nature photography, landscapes, birds, animals, etc.

But, today, I came across something weird when I decided to research a little on photography restrictions. In the California State Parks (and a few municipalities) the rules it state that if you do any commercial photography (defined as any intent to make a profit or for sale), you must get a permit. Now, the permit is free, but you need liability insurance, which isn't really expensive. But, since I do not make hardly any money and I only use a few photographs from these areas a year, I don't think I should have to buy it.

Here's what I do with my photos:

90% go on my blogs which has advertising on it and, of which, I have not made any money.
5% go to illustrate articles or post on websites where I can, potentially, earn money but am not (for the most part), paid anything upfront.
3% go on forums and websites such as Flickr and Facebook
2% go on mugs, t-shirts, etc.

I do not bring any equipment, models, or expensive camera equipment that's out of the ordinary. (If I'm birding, I will bring a scope and tripod) If you were to look at me, you would have no idea I was anything other than a typical tourist or serious birdwatcher. In fact, when I go out to take pictures, I have no plans for them whatsoever. I just like to take photos and if I see something I can use, later, I will. I also don't do stock, advertising, or magazine photography and am never out "on assignment". Use is almost 100% editorial unless I am entering a photo contest.

My question is would I be considered a commercial photographer? Would telling an official that I use my photos for my blog make them think I am doing commercial photography? Also, if I used photos I took years ago, can they charge me a fine if they check and see I didn't have a permit at the time they were taken?

I've heard of people getting hassled just because they are using a tripod. I need a tripod to use my scope and I will be using my camera and scope together to identify and confirm rare species of birds.

timelady · #2 04-11-2012, 05:59 AM

Commercial essentially means for business use. If you are selling the images, attempting to sell the images, or selling products with the images on - then yes you would be a commercial photographer. One way to determine this might be if you file taxes that include your income from photography. Or is your photography a hobby? (ie. you don't declare it on your taxes).

I'd say if you are going just to photograph for enjoyment (and you won't be using the photographs commercially) then you can say you're there as a birdwatcher. Lots of people have snazzy photo equipment nowadays.

Personally, I'd say just ask them.

Horsa · #3 04-11-2012, 07:24 AM

You are right on the line aren't you?

If you do not currently have the requisite insurance for the permit I would just keep flying under the radar. But that is me. If you have the insurance, get the permit.

Technically I think they would consider you a commercial photographer.

DesertDarlene · #4 04-11-2012, 08:25 AM

This year, I had to file taxes for my "business" income, but the majority of income was for writing, not photography or art and most of it was non-cash compensation. I also have a business tax certificate for my city that states that I am a freelance writer, artist and performer, but I don't think it says "photographer". (My city, as far as I could find, doesn't require you to get permits unless you are severely disrupting city business. Individual parks may have their own rules).

I do want to clarify that these permits are not a license and have nothing to do with licensing or permission to use photographs in a commercial way. They're permits that basically cover their behinds in case something happens while I am shooting. Or, in the case of some cities, fees for tying up resources or using city property.

90% of most of the public areas in my region only require a permit if you have an enterouge, models, etc. Most places won't give you any hassle if you're alone and just with a tripod and camera.

However, is there any chance of them coming after me with fines in the future about this?

DesertDarlene · #5 04-11-2012, 09:07 AM

I just contacted the San Diego Film Commission to see what they say. Even if they say I need a permit, I think I'm just going to continue on with what I am doing until I am either told not to or I buy the insurances.

Actually, I am planning on stripping most, if not all, of my advertising on my biriding blog, anyway, mostly because I am having hassles with the affiliate and I'm not making a stitch of money on them. So, technically, if I'm just taking photos for my blog, it's not commercial in any way. So, if I'm asked (as I often am), I can almost truly say that I'm just doing it for my non-commercial blog.

I'm also gradually moving away from using photos on my Cafepress store to using more artistic creations.

DesertDarlene · #6 04-11-2012, 02:05 PM

Here's an update. I got my answer from the film commission and they say that I will not need a permit in all the areas they oversee (the city, the county, the port, and unincorporated areas). They said to check with the state and city parks individually (I've already checked in with the park I do the most photography in before I started). And, I already know what the rules for the national lands are.

They said that my type of photography is so low impact that it is, unlikely, I will not need a permit in most places. Though they can't speak for places where they have no influence or jurisdiction, so it's best to check with those places individually.

So, I think it's the type of activity, not the end use, that's the issue.

However, that doesn't mean that a ranger can't stop me and ask if I'm doing a commercial shoot if they have reason to think I am.

kaslkaos · #7 04-12-2012, 04:14 PM

Oh thank goodness. A common sense interpretation of the law. I was reading this wondering what kind of ridiculous restrictions a park could come up with, but the conclusion makes sense. Otherwise, any tourist with talent would need a permit, right?

DesertDarlene · #8 04-12-2012, 05:04 PM

That's exactly what they said. But, I know some people in the state parks who had gotten thrown out or fined for just having a nice camera or a tripod.

mariposa-art · #9 04-12-2012, 06:10 PM

This is good to know. I don't make a lot of money off my photography (it's realllllly just a hobby), but just in case this comes up, now I know where I stand!

DesertDarlene · #10 04-12-2012, 11:53 PM

I was looking at other areas of the world and I can't believe what happens in Australia. I guess in one park, if you do anything "commercial" with the photos taken without a permit, even if you weren't planning on doing so at the time you took them, they can fine you up to $55,000 AUS and take your equipment away. Good luck trying to get that from anyone outside that country after they leave. However, if you want to come back, uh oh!

In some parks in Australia, you have to have a permit to even draw something in the park. And, one guy, whose family lives near an Australian National Park, was told that he couldn't even print and distribute photos taken of a family plot (that was in the park) to friends and family at a memorial. He said you would not even be able to put photos up on Facebook or Flickr, either!

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