Photography - on drugs?
November 12, 2009 1:22 PM   Subscribe

Legality of photographing a controlled substance?

(you're not my lawyer)

A photographer I work with is producing a shoot involving marijuana. As this is for a promotional piece, photo credits are pretty much required.

Partly inspired by this story that recently appeared on Metafilter. That photo essay was more journalistic, and there was no discussion of Young's legal exposure.

After some searching I haven't been able to find much. Yes, High Times is sold on the newsstand but it seems most of the drug photos are published under a pseudonym, and yes, there are photos of marijuana being sold on stock photo sites (usually uncredited).

My main question is - are there any legal implications to be associated with the creation of photos (still life - no people) of a controlled substance? I'm not asking about any kind of possession-related charges - just a name on a photograph.

posted by infinitefloatingbrains to Media & Arts (10 answers total) 2 users marked this as a favorite
There may be, but one huge obstacle to prosecuting anyone about such a photo is that there's no way to authenticate it.

Unless you testify against yourself (which you don't have to, of course) there's really no way to establish where, when, why and how the photo was created. This is a big deal because it determines not only who would prosecute (due to what jurisdiction the photo was taken), but the admissibility of the photo itself in court.
posted by inturnaround at 1:28 PM on November 12, 2009

IAMAL, obvs, but...

I highly doubt there will be any legal ramifications for a couple reasons -

1) there's nothing on you. Certain plants are illegal, but photos of them are not. Arresting you would be like someone getting arrested for, say, merely telling someone they had done Heroine or something.

2) there would be no way to prove that the substance in the photo is actually marijuana. For all they know it could be a cigarette or those leaves could be very carefully crafted replicas made from construction paper.

3) I doubt anyone will care.

I could be totally wrong. If I am, then shit I better start getting rid of some photos...
posted by Lutoslawski at 1:34 PM on November 12, 2009

You should probably ask a lawyer about this, not a bunch of random guessers online.
posted by dirtynumbangelboy at 1:46 PM on November 12, 2009

Couple of things to think about ...

* Large amounts of drugs will automatically enter their possessor into "intent to sell" territory, which may trigger more attention than usual. High Times gets away with it by making any potential investigation not worth the effort, through the use of pseudonyms and the like, but more importantly, through the protections provided by ...

* Shield laws, which vary from state to state.
posted by Cool Papa Bell at 1:51 PM on November 12, 2009

Unless you testify against yourself (which you don't have to, of course) there's really no way to establish where, when, why and how the photo was created.

doesn't the attachment of the name to the photo in the form of a photo credit mean that infinitefloatingbrains is saying s/he took the picture?
posted by anthropomorphic at 2:24 PM on November 12, 2009

I think it'd be hard to prosecute. There's no evidence, from the photo, that your photographer was actually in possession of the marijuana at any point. He could have met a stranger at the beach, gone home with him, taken the photo, and then left. Or the photo could be fifteen years old. Or the grass could be fake.

The only evidence the photo brings is that there was some pot... somewhere... once.
posted by Netzapper at 2:28 PM on November 12, 2009

In the age of Photoshop, I can't imagine that it would be easy to get any kind of conviction based on a static image with no context.
posted by quin at 2:38 PM on November 12, 2009

What exactly would you be prosecuted for? Possession is what's illegal, and making a photograph isn't possession or even proof of possession. If the cops walk onto your set while you've got a bunch of dank, dank plants sitting there I could see that being a problem. IANAL but I have a hard time imagining why anyone would care if they saw a photo after the fact, and if they did how they would go about turning that into criminal charges. What are they going to do, charge you with obscenity? How would they know you weren't at a legally sanctioned medical cannabis club in California?

There are entire forums where thousands of people post pictures of their own personal grow-ops and talk about them at length. I think if the police were going to go after anyone they would start there.

I actually have a photo of a marijuana leaf on a major stock site - I shot it at a friend's house who is a licensed medical patient - and it's not under a pseudonym so this is something I have thought about. I live in the "Oaksterdam" part of Oakland and have talked to High Times about shooting assignments around here, and if I ever did I wouldn't think twice about having it published under my real name. Making photos isn't illegal.
posted by bradbane at 2:43 PM on November 12, 2009

He could have taken the photos in Amsterdam, having pictures of pot is going to be no problem as far as I can see.
posted by knapah at 6:14 PM on November 12, 2009

Thanks everyone for the answers!
posted by infinitefloatingbrains at 7:49 AM on November 13, 2009

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