Not military justice, but

Adv. Rakefet Peled

An Israeli court has handed down an interesting decision on whether a military photographer is entitled to photo credit for a picture taken in the line of duty or whether it is sufficient to credit the IDF's spokesperson. Rakefet Peled, a partner in the Tel-Aviv IP firm Gilat Bareket & Co., writes under the headline "Are Moral Rights Denied from Servicemen?" Except:

In September 2017 the Jerusalem District Court held that the Israel Defense Force (IDF) had no obligation to designate the name of a soldier photographer in publications including photographs taken during a soldier’s military service and that assigning credit to the IDF spokesperson alongside the picture is sufficient. Considering the recent trend of Israeli courts to strengthen moral rights of artists, this ruling is particularly interesting because it practically exempted the IDF from the obligation to assign credits to authors.

In Ron Ilan v. Miskal Publishing House the claimant had served as a photographer in the military’s photography unit , and the defendants, a book publisher, had published a book that contained pictures taken by the claimant during the Yom Kippur War, without his name being mentioned as the work’s author; rather, the publishing company gave general credit to the IDF spokesperson only.

The publisher argued that since the IDF spokesperson, specifically instructed it to give general credit only to the IDF spokesperson and not to any particular photographer, it could not be held to commit any wrong. The IDF spokesperson’s position (claimed in a third party notice) was that there were various reasons to justify the guidelines whereby only the IDF spokesperson was to be mentioned and not the individual soldier, including the facts that the military provides the photography training and equipment, that the military finds importance in the mission to photograph and not the artistic quality of the photography, and that giving credit could lead to artistic competition among photographers, which would result in them focusing on the artistry of pictures instead of serving the military’s goals.

Acknowledging the premise that the creator is entitled to receive credit, the court rejected the argument that a person who enlists into the military waives his/her moral rights in any work. The court held that military conscription and corps enlistment do not represent an implied agreement to waive the moral rights of the soldier. Nonetheless, it was held that the obligation to assign credit to the author according to the law is not absolute and its scope is dependent on “the degree and extent appropriate under the circumstances.” The court ruled that, for military photographers, it was sufficient to assign credit to the IDF spokesperson and hence rejected the suit filed against the publishing company.

The court relied on four considerations in its decision: (1) the fact that the publishing company fully complied with the guidelines of the IDF spokesperson, who had requested that no individual credit be given to the photographer; (2) the fact that this was a work created by a military serviceman, who, as an enlisted service member, has no expectation to receive individual credit; (3) policy considerations of there being a real concern that specific credit given to individual military photographers would adversely affect the military corps’ activity as well as the unit’s cohesion. The court also pointed out the concern that giving individual credit would lead to preferences for images more likely to gain wide exposure and that have artistic breadth versus pictures serving military needs, and even remarked that revealing the photographer’s name could possibly put such person at risk ; and (4) in the specific case at hand the claimant was not a professional photographer and no damage was caused to his career by omitting his name.

[Footnote omitted.] The author goes on to note that the district court's decision is inconsistent with earlier case law. Perhaps it will be appealed.