With marijuana now allowed in 29 states and the District of Columbia for medical or recreational use, a relaxed attitude toward the drug is opening up in many corners of the country.
And while taking photos of others partaking in 420 activities isn’t a crime, experts say that being in the presence of an illegal substance could potentially lead to a sticky legal situation for photographers.
“Everything is in extreme limbo,” said Thomas J. Simeone, a trial attorney and adjunct law professor at the George Washington School of Law in Washington D.C. “Marijuana is still illegal under federal law, even in states that have legalized it. The feds have not prosecuted users, but they could at any time.”
Simeone said the act of photographing marijuana in and of itself is not illegal, but could lead to separate legal issues for a photographer, including possession charges or getting called as a witness in a court case.
For example, photos used to promote marijuana products could leave the photographer criminally liable for aiding and abetting in the sale of an illegal substance, Simeone said. And, even if the marijuana is owned by someone else, a photographer could legally be in possession of the drug, even for a short amount of time.
“Until marijuana is completely legalized—both at a state and federal level—a photographer should be mindful of the potential legal risks of aiding the sale of it, possessing it, or both,” Simeone said. “The trend is clearly against the criminalization of marijuana users. Photographers are even less culpable than users, but if they are part of the distribution of it where it is not legal, they should be careful of the serious penalties for distributing and possessing with intent to distribute.”
Jef Henninger, a criminal defense attorney and consultant in New Jersey, said the issue might come down to how close a photographer gets to illegally possessed marijuana.
“Multiple people can possess the same object [in] a concept called ‘joint possession’ (no pun intended),” Henninger said, adding that an item,such as a joint, doesn’t need to be on your person for you to have possession.
"As a photographer taking a picture of illegal marijuana, an argument can be made that you exercised dominion and control of it since you had to get close enough to it. The more you touch it and the closer you get, the more you have dominion and control,” Henninger said. For photographers, Henninger said it’s safer to have the owner of the marijuana hold it for the entire shoot and never put it down.
Neither Simeone nor Henninger were familiar of a specific case of a photographer being prosecuted.
Last summer, South Florida-based photographer Dalton Clements traveled to Colorado to photograph a wedding where cannabis was incorporated into the festivities (the bride held a marijuana bouquet and the wedding party dabbed instead of toasting with champagne).
“I didn’t partake because one, I’m from Florida [where marijuana isn’t legal] and two, I was working,” Clements said. “And I didn’t have to worry about the legality because both the bride and the groom had their marijuana cards.”
Clements, who said he started doing some marketing in Colorado as an interesting and fun way to mix up his wedding photography business, said the questions he had to ask himself—after the legality of the situation—had to do with how he would share his work.
“I was very specific about direction,” said Clements, who ultimately decided to post photos that simply hinted at the cannabis-themed wedding on his Instagram page, reserving the photos of actual smoking with his newlywed clients.
“[When it comes to future clients,] I want to make sure I rolled on the right side of the line,” Clements said.
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