Ok, let me pose another scenerio. Lets say I have someone who wants me to shoot some photos. I'm not a pilot, but I can find some local GA pilots. I go to an FBO and rent a plane. I say to a local pilot, you want to get some more hours for your logbook, tell you what. I'll pay for the plane. You fly. Just take me up and let me shoot some pics, lets fly over this spot. Would they get in trouble for that?
That pilot would need a commercial pilots license to be legal. The compensation or hire issue is the flight time (compensation). So a private pilot can't do it. I'm pretty sure that a private pilot could not even share cost on this kind of flight because the flight is not incidental to the business, it is essential. If you are flying with a few employees to a meeting about your aerial photography business to a nearby city, that is incidental, as long as they are not paying you to get them there. No different than driving. When you start taking pictures that are going to be sold, the flight is no longer incidental.
This is how slippery the slope can be. My brother likes to fish and has friends that he likes to do this with. He asked me if I could fly them, in my airplane to do a fising trip and they would pay for the airplane costs. Answer, no, unless I intended to also go on the fishing trip and the costs shared were as indicated in the FAR's. How would I answer the question, what was the purpose of the flight? If it was to get them there to go fishing it should have been Part 135 or Part 91 with them renting the airplane and me as a paid commercial pilot. I can't do either in my airplane.
Now, what if I went fishing too? Might work, as long as my real intent was to join the trip and not just fly it. Would I still have gone if they drove? Better make sure any witnesses would answer that question the right way.
According to 14 CFR 61.113 (b) (1) and (2), you're fine.
I don't think that this will be a safe haven. The problem is with the incidental part. Like my comment above, if you can conduct the activity in an automobile as well, then it might be incidental. The CFR qouted above is designed to let you carry people in the course of employment (where you are compensated), but not if the employment is the transportation of people. Think automobile again. If you are going to a meeting and you are taking a few people with you, drive or fly, does not matter and you can fly it with a PPL. The second one of them pays you to fly them to the meeting or the company compensates you for the flying part, you need a commercial license.
You are talking about a commercial operation. You already mentioned in your first post the idea of being creative with the regs. That is usually the first indication of trouble. Also, aerial photography is specifically mentioned in 91.501 "Aerial work operations such as aerial photography", the key word here is "work".
If you happen to sell a photograph that you took on any particular flight, I don't think that is a problem as long as it didn't happen to often. If someone pays you to acquire an aerial photo for them, you need a commercial pilot in there somewhere.
If you really want to have some fun, go to the local FSDO and ask them the question just as you outlined it in your first post.
The regulations don't always work the way we wish. My pet peeve is the one about sharing costs. In my airplane, Part 91, same as any FBO, and I would argue better maintained, I can only share the cost of fuel, away tiedown, fees, etc. on a per seat basis. So maybe 25 dollars per hour per seat. If I rent the same aircraft, for about 200 per hour, I can charge 50 per seat per hour. I'm a commericial pilot too, and that makes no difference because my airplane is not a Part 135 operation. But my friends can rent a Part 91 Duchess from the FBO and pay the entire cost of the aircraft and pay me to fly it too. Go figure!!!
