Non-commercial use. What is commercial use of photographs?
A direct interpretation of the wording “use for non-commercial purposes” jeopardizes the use for charter and training of non-commercial small boats - pleasure boats, sports sailing boats and vessels supervised by GIMS.
A.S. Nedoshivin
Chartering non-commercial yachts, as well as training on them, may be considered illegal
Commercial and non-commercial purposes of using a small vessel
The purpose of using a small vessel is a circumstance from which important legal consequences follow.
A small vessel is any vessel up to 20 meters long and up to 12 people on board. But the procedure for registration, technical examination and operation of a small vessel, the scope of technical requirements depend on the purposes for which the small vessel is used - commercial or non-commercial.
Small vessels used for commercial purposes are subject to registration in the Rosmorrechflot system (Federal Agency of Sea and River Transport) - by captains of seaports and inland waterway basins. Technical requirements are determined by the requirements of the Maritime and/or River Registers. Only persons who have the appropriate working professional diplomas can operate such a vessel and work in any position from sailor to captain. From the point of view of legal regulation, small vessels used for commercial purposes are no different from large ships.
For small vessels used for non-commercial purposes, simplified requirements for supplies and equipment have been established. Such vessels are subject to registration with the GIMS, and to operate them, the navigator must have a Certificate for the right to operate a small vessel, issued by the GIMS.
Sports sailing vessels and pleasure vessels are vessels used for non-commercial purposes, but are subject to registration in the Rosmorrechflot system. Special lightweight requirements of the Maritime Register apply to them.
The design features of ships built over the last 100 years and still afloat do not allow them to be strictly divided by type. The legislator has formulated the definitions in such a way that in many cases the owner can register his vessel as a pleasure vessel, as a small vessel, or as a sports sailing vessel. Certain restrictions on technical characteristics are contained in the Register Rules, but the main feature that determines the technical equipment, the rigor of state supervision and the necessary qualifications of the crew is the purpose for which the vessel is used - commercial or non-commercial.
Russian legislation does not provide a legal definition of the commercial (non-commercial) purposes of using something.
This means that the registration and technical supervision authorities, law enforcement and law enforcement agencies, when considering a particular case, will form an opinion about what the real purposes of the use of this vessel are, based on common sense considerations and the commonly used meaning of the phrase “commercial purposes of use”.
In some cases, for example, the transportation of passengers or cargo for material compensation is the use of a vessel for clearly commercial purposes. But in many cases the line between commercial and non-commercial uses of a vessel is not so clear. For example, participation of a yacht for a fee in some public events, or training on board a ship.
An acute question arises about the legality of classifying pleasure and sports sailing vessels offered for bareboat charter as commercial vessels.
What is the problem
During state registration of a yacht, the owner declares the purposes of its future use. This stage does not cause any difficulties. Almost any vessel can be used for systematic profit-making or, conversely, for private walks or sports. Any vessel registered as a commercial vessel can be used for non-commercial purposes.
Problems may arise during the operation of a vessel registered as a non-commercial small vessel, supervised by GIMS, a sports sailing vessel or a pleasure craft. Up to administrative and criminal liability for illegal business.
Of particular concern is the charter of pleasure (sports sailing) yachts. The fact is that for the owner of a pleasure boat, renting it out for a fee is clearly a commercial activity. Based on the literal interpretation of current regulations, the vessel immediately becomes commercial and loses its status as a pleasure vessel (sport sailing vessel). And commercial ships can only be operated by a crew with professional diplomas.
That is, recognition of the bareboat charter of pleasure and sport sailing yachts as the use of these yachts for commercial purposes makes such a bareboat charter impossible. The situation is similar with leasing pleasure (sports sailing) yachts.
The absence of bareboat charter for pleasure and sports sailing vessels will significantly limit Russian citizens’ ability to get involved in sailing and water recreation, and will negatively affect the development of sailing.
Recognizing the conduct of practical classes or training voyages on a paid basis as a commercial activity makes any non-free training on board a sports sailing yacht or small vessel registered with the State Inspectorate of the Russian Federation illegal.
What is commercial activity and the use of something for commercial purposes?
Both Russian legislation and international law do not provide a legal definition of not only the commercial (non-commercial) purposes of using something, but also commercial (non-commercial) activities in general.
The characteristics of non-profit organizations are described in more detail: a) making a profit is not the main goal; b) there is no distribution of profits between participants. But non-profit organizations have the right to carry out “entrepreneurial and other income-generating” activities. They are simply obliged to use the profits received for statutory purposes.
The Civil Code defines entrepreneurial activity as an independent activity carried out at one’s own risk, aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services by persons registered in this capacity in the manner prescribed by law. The goal is clear, the types of activities are also clear, but the problem is with the subject. Following the formal logic of this definition, if a person is not registered as an entrepreneur, then whatever he does, it will not be a business activity. And, accordingly, he cannot be brought to administrative or criminal liability for illegal entrepreneurship, since there is no objective side of the offense - entrepreneurial activity.
At the same time, the Constitutional Court established that the activities of shareholders, including the management of a joint-stock company, are not entrepreneurial, but are other economic activities not prohibited by law.
Economic science completely confuses the issue. It sometimes in a narrow sense, sometimes in a broad sense, sometimes equates commercial activity with entrepreneurial activity, but more often considers commerce (from the Latin commercium - trade) exclusively trading and trade-intermediary activity that does not cover the process of manufacturing goods or providing services, that is, private case of entrepreneurial activity.
How do “commercial”, “entrepreneurial”, “other income-generating”, “other economic” activities differ and where are they demarcated and, accordingly, how do “non-commercial activities” or, even worse, “use of a vessel for non-commercial purposes” relate to them? It's clear.
What does maritime law tell us?
Russian rules of merchant shipping are closely integrated with international maritime law. Russian yachts with ship's documents and crew qualification documents issued by Russian government agencies have the right to sail into international waters and enter the territorial waters and ports of other states.
International conventions in the field of maritime law ratified by Russia are valid in Russian jurisdiction as part of Russian legislation. Moreover, the USSR, and later Russia, took an active part in the development and consolidation of international maritime norms, and most international conventions in the field of maritime law, ratified by Russia, have an official text in Russian.
But maritime law regulates, first of all, merchant shipping. And pleasure vessels are exempt from many international conventions. Historically, maritime law has been and remains part of commercial law. It is no coincidence that the main law regulating relations at sea is called the Merchant Shipping Code of the Russian Federation.
Therefore, in international maritime law we also will not find criteria for using a vessel for commercial purposes (Commercial Purposes, Business Purposes, Engaged in trade) or, conversely, for non-commercial purposes (NOT Engaged in trade).
Moreover, the Administration of the Paris Memorandum in its Letter dated 06/01/2013 “Application of Port Control to Yachts” confidently classifies pleasure yachts for charter as commercial ones.
Let's try to figure it out
Within the framework of this article, we are only interested in the content of the concept “use of a vessel for non-commercial purposes.” The first two words do not raise any doubts, but “commercial goals”, along with general commercial (entrepreneurial, income-generating, economic, etc.) activities, as we showed above, leave a wide field for interpretation. It must be understood that officials in the public service are obliged to interpret the wording of the law to the fullest extent, otherwise claims may be brought against them themselves.
However, both too narrow and too broad interpretations of the concept of “commercial purposes” lead to contradictions.
The division of the small fleet into two groups, commercial and non-commercial, has a reasonable basis for imposing standard (high) requirements on vessels used for commercial purposes. Firstly, to protect the interests of the consumer, relatively speaking, who bought a ticket and expects that the ship and crew meet all safety requirements. Secondly, the operating mode of a vessel used for commercial purposes is much more intense than a pleasure vessel. Even in bad weather. The load on the ship, equipment, and crew is greater.
At the same time, it would be cruel to impose the same high demands on private loiterers as on professionals; it would greatly increase the cost of time and money for maintaining the vessel and preparing it for sailing, which would not contribute to the development of water sports and tourism.
A narrow interpretation of commercial purposes as exclusively trading does not cover all types of economic (professional) activities of small vessels that carry passengers, catch fish, and carry out many other works on the water.
Equating in general any benefit associated with the use of a vessel with its use for commercial purposes leads to the fact that bareboat charter (renting a vessel without a crew) of pleasure boats becomes impossible. Indeed, the chartering of a pleasure craft is clearly a commercial activity with the express purpose of making a profit. This means that the ship loses its pleasure status.
Practical exams for the right to operate a small vessel supervised by the State Inspection Service, that is, used for non-commercial purposes, can only be taken under the conditions of free use of such a vessel. GIMS does not have all types of vessels at its disposal, for example, sailing vessels. That is, if you do not have your own sailing vessel and no one agrees to provide you with their vessel for free, you are deprived of the opportunity to pass the practical exam.
Shipowner and owner
The use of a vessel has an object - the one whom. That is, the ship itself. And there is a subject - the one who.
Many people use the boat. Not counting the crew members and passengers, there are at least three - the owner of the ship, the shipowner and the captain. One person can be first, second, and third at the same time, but they can also be three different people. And each of them has a different set of rights and responsibilities.
It also makes sense for them to consider separately the question of the purpose of using the vessel.
Captain. If it does not coincide with either the owner or the shipowner, then it is simply one of the crew members performing official duties. Albeit endowed with special responsibility and special powers. He is not a user of the vessel and, accordingly, he cannot have independent purposes for using the vessel. Neither commercial nor non-profit.
Owner. The person who legally holds title to a ship. Property rights are the sum of three rights – possession, use and disposal. Each of these rights can be transferred to other persons. For example, rent is the transfer of a thing for temporary possession and use, or only for use.
Shipowner. In maritime law, a shipowner is a person who operates a ship on his own behalf, regardless of whether he is the owner of the ship or uses it on another legal basis. If the shipowner is not the same person as the owner of the vessel, then the right of use was transferred to him by the owner of the vessel. At the same time, the shipowner is not only the person using the ship on the basis of a bareboat charter agreement, but also the person operating the ship by proxy.
Thus, the question of the presence or absence of commercial purposes for using a vessel must be considered from the point of view of the subject of this use.
If the owner has transferred a vessel registered as a non-commercial vessel (pleasure vessel, sports sailing vessel, Pleasure Vessel) to another person for use for non-commercial purposes, and this person, who has become the shipowner since the transfer, uses this vessel for non-commercial purposes, then this should not change the legal status of the vessel . Even if for the owner of the ship this is the most commerce.
That is, if a bank leases a pleasure boat or a charter company leases a sports sailing yacht, and for them this is a source of systematic benefit, and the shipowner uses the ship for its intended purpose, that is, for non-commercial purposes, then the ship should not change its status and cease to be a recreational vehicle (sport sailing, small size, supervised by GIMS).
If, on the contrary, the shipowner operates (uses) the vessel for the purpose of systematically generating income, then this should be the basis for the vessel to lose its non-commercial status, increased technical requirements should be imposed on it, and this vessel should be operated by a professional crew.
Legislation needs to be amended
Everything seems to be logical. When considering the issue in court, there is a high probability that these arguments will make an impression.
But, I'm afraid, when communicating with government agencies and officials, success is unlikely. Again, public officials are required to interpret the language of the law in its entirety. And the navigator’s clever reasoning about subjects and objects is unlikely to help.
The uncertainty of the concept of commercial purposes for using a vessel can jeopardize many historically established and successfully practiced types of use of non-commercial vessels - charter, leasing, training.
Art. 50 of the Civil Code of the Russian Federation (part one) dated November 30, 1994 N 51-FZ (as amended on December 30, 2015); Art. 2, Federal Law of January 12, 1996 N 7-FZ (as amended on December 30, 2015) “On Non-Profit Organizations”
Paris Memorandum of Understanding on Port State Control - an agreement on Port Control of foreign ships, concluded by 19 countries (Europe and Canada) is the most significant and effective among those currently available 11 similar regional agreements. The main goal of this fight is to improve the safety of navigation, preserve human life at sea and protect the environment. To ensure this goal, inspections of foreign ships calling at them must be carried out in the ports of each of the countries of the Paris Memorandum.
By agreeing to the commercial use of your photographs, you have a chance to see yourself or your beloved little one in a popular children's magazine or, for example, a magazine for expectant parents, in an advertisement for a children's toy store, or clothes for pregnant women... Or maybe your positive family will decorate an interesting publication about family leisure? Is it really that scary? Moreover, many of you easily post your photos on social networks, share them with friends on the Internet... So why not get a good discount from the photographer for your photo shoot, and let people admire the baby’s chubby cheeks, beautiful pregnancy or family happiness ??? You yourself, when you see such photographs, are touched: “What a beauty!”
What is commercial use of photographs?
“Commercial use” of photographs refers to a form of use of photographs whose purpose is to make a profit.
All photographs that you see in print media (newspapers, magazines), in any printed and advertising products (postcards, booklets, calendars, catalogs, promotional materials and presentations, big boards), as well as online publications and product packaging - everything this is the commercial use of photographs.
What is a model release and why is it needed?
Photographs of people cannot be used for commercial purposes unless the people have given their written consent.
A document that confirms that a model allows her photographs to be used for commercial purposes is called a Model Release. The release is signed by an adult - the model, or the parents of the model (child).
This document gives the photographer the right to offer his work to magazines, designers, advertising agencies, etc. If you want to read the text of the release, contact me - I will send you the file by e-mail.
What are Photobanks?
Any product, be it a fashion magazine, advertising brochure, website or gift card, in addition to its content, attracts customers primarily with its beautiful design. Therefore, beautiful pictures and photographs have always been, are and will be in demand.
Today, the best way for a photographer to express himself and his creativity, and offer his work in any corner of the globe is photo banks and microstocks.
Photo banks and microstocks are, one might say, a huge image store where photographers from all over the world offer their work to those who need high-quality photographs for design, advertising and decoration of various goods and services. It is no secret that many famous glossy publications are happy to use photographs and images purchased from Photo Banks on their pages.
Examples of photo banks with which I cooperate:
» spoke about what an NPO is and what features this type of organization has.
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The Internet is full of articles about forms suitable for business (we also talk about this). Most of these articles talk about the choice between an individual entrepreneur and a commercial organization (LLC or JSC), but there is almost nothing about non-profit organizations (NPOs). One could say that this is the “twilight zone” of Russian corporate law.
We decided to fill the gap and dispel common myths. If you like the article, write about it in the comments, we will continue to destroy the legends.
Myth one: there are few non-profit organizations and they have no money.
According to official statistics, NPOs account for up to 17% of Russian legal entities. There are several times more non-profit organizations than the same joint-stock companies; Their turnover is appropriate.
Non-profits include not only charitable and religious organizations, but also the entire public sector, almost all educational organizations, all state clinics, consumer cooperatives (parking lots, HOAs, dacha cooperatives, etc.), development institutions like IIDF or ASI and many other very different structures.
At the same time, the NGO sector is very poorly regulated. Not in the sense of “not regulated at all,” like cryptocurrencies, but in the sense that regulation is very fragmented and internally contradictory.
The central law “On Non-Profit Organizations” covers at most half of the types of NPOs, the rest are hidden in specialized laws like “On Charitable Organizations”, “On Public Associations” and so on. Many of these laws were written back in the 1990s and have not been updated since then to comply with the changed Civil Code.
It is very difficult for a non-specialist to understand the resulting mess: nowhere is there even a list of existing forms of non-profit organizations. At the same time, the constituent documents of NPOs, unlike the same LLC, are carefully read by specialists from the Ministry of Justice - it is almost impossible to register the first time without experience.
Non-profit organizations also have additional statuses related to the type of their activities. For example, charitable status is an achievement for a regular non-profit foundation that allows you to pay less taxes, but it doubles the amount of paperwork.
Now it is necessary to apply not only the law “On NPOs”, but also “charitable” legislation, as well as submit special reports. Obtaining and updating licenses (for example, for education, treatment, etc.) will further complicate the work of the organization’s lawyer.
Myth two: non-profit organizations cannot engage in entrepreneurial activities
This myth is generated by the initial confusion in terms. According to the Civil Code, entrepreneurial activity is independent, risky and systematic profit-making. Let me remind you that profit is when income exceeds expenses.
Obviously, if the expenses of an organization - whether commercial or non-profit - exceed its income, it will simply go bankrupt. Therefore, non-profit organizations not only can, but also must engage in entrepreneurial activity in order to stay afloat - or survive on membership fees and donations, which few are capable of.
In general, non-profit organizations can carry out the same activities as commercial ones: supply goods, provide services, perform work, and so on. Rare exceptions relate to individual licenses (for example, an NPO cannot become a bank).
However, there is a really important difference in the types of activities between commercial and non-profit organizations: this is the so-called target legal capacity of NPOs. Unlike for-profit organizations, which have the right to do whatever they want, non-profit organizations are limited by the goals specified in the charter.
This should ensure that some “stray cat rescue fund” does not start funding Middle Eastern Salafis. In practice, the founders of an NPO state in the charter “the right to engage in any income-generating activity” and thus solve the problem of target legal capacity.
Myth three: non-profit organizations do not pay taxes
It seems logical - as long as non-profit organizations do not compete with for-profit ones, the state should support them for the sake of the public good they create. But not in Russia.
The Russian tax system provides for almost identical taxes for all organizations, including non-profits. Not very fair, but that's how it is. But NPOs have the right to use all the same tax regimes as “big” companies: for example, a simplified tax regime in order not to pay VAT.
There are exceptions to this rule in favor of NPOs, but they are very few. Associations and unions (for example, trade unions) do not pay taxes on membership fees; Also, NPOs do not pay taxes on gratuitous donations.
There are a number of benefits for charitable organizations, which apply provided that at least 80% of the proceeds are distributed by such organization as charitable assistance. Otherwise, non-profit organizations pay taxes on the same basis as commercial ones.
Myth four: non-profit organizations are used for manipulation
Due to recent investigations, NPOs have gained a reputation as “cutters.” It is both a myth and not a myth.
Non-profit organizations are indeed used to hide the beneficiaries, that is, the true owners of the business. There are so-called autonomous organizations that formally do not have owners or beneficiaries: they exist on their own.
After registration, such a company operates without shareholders and participants, can create subsidiaries (including commercial ones), manage its own property, but has no beneficiaries. Consequently, any attempt to disclose information will reach a dead end.
Regular scandals with the distribution of presidential grants do not improve the reputation of NGOs. Organizations that are refused, especially on formal grounds, always claim corruption - and this cannot be verified, since the procedure is truly opaque.
However, all these “cutting” scandals are covered by one factor that distinguishes non-profit organizations from commercial ones: it is really difficult and expensive to withdraw money from NPOs. Almost all NPOs do not have the right to pay dividends to their founders; they are obliged to spend what they earn on their statutory goals, and if the goals are achieved, they must give it to the state.
Therefore, even if you create an NPO and earn money through entrepreneurial activity, withdrawing it will be extremely difficult and costly.
As for obtaining grants, this is also not so easy. Firstly, in order to ask for a grant, you first need to engage in socially useful activities at your own expense for quite a long time. Secondly, processing the receipt and execution of a grant is a mountain of paper; The reporting there is not that difficult, but very exhausting.
And thirdly, grants are usually small: up to several million rubles. In practice, it is much easier to earn this money than to try to “cut it off” from the government, and it is much safer.
Why do we need NPOs at all?
After all of the above, the question naturally arises in your mind: if NPOs do not provide benefits, then who creates them in the first place?
Firstly, social entrepreneurs who are already engaged in non-profit activities - NPOs allow them to receive grants and donations, which is prohibited for commercial organizations. If you have competent lawyers and accountants, you can build an entire holding company from NPOs and save a little on taxes.
Secondly, some types of activities are available only to non-profit organizations - for example, training (except for additional education), self-regulation (SRO), housing management (HOA), and so on. Therefore, in order to create a kindergarten or school, trade union or chamber of commerce and industry, you need to register an NPO with the Ministry of Justice.