December 3, 2017

Are Moral Rights Denied from Servicemen?

Rakefet Peled, Partner
Rakefet Peled


Gilat, Bareket & Co.

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[1] 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.

This ruling is inconsistent with a previous ruling handed down in similar cases. For example, in Tzarfati v. Tartakover[2], the court addressed an historic photograph of the Egyptian president Anwar Sadat waiving his hand at the end of his trip to Israel. The picture was taken by Tzarfati during his service in the military; Tartakover used the picture on posters he had created, without him giving credit to Tzarfati, but rather to the Government Press Office (GPO). In said the court awarded Tzarfati ILS 25,000, reasoning that the country’s economic right in the photograph does not deny the military photographer of his moral right in the picture, and that the fact that credit was given to the GPO does not free Tartakover from having to clarify who the photographer is nor from giving credit to the photographer himself.

In a proceeding conducted against Miskal in Shlomo Arad versus Miskal, Channel 10 et al.[3], it was ruled that Miskal’s very reliance on a document of a person claiming that he is full owner of the rights in the pictures related to the Yom Kippur War, where the photographer was in fact another person, does not exonerate it from liability, given the violation of the moral right of the original photographer who took these pictures during his military service period.

Notably, this case, where the defendants could simply have inquired into who the photographer was so they could publish his name, differs from the recently-issued ruling in the case at hand, where the IDF spokesperson was the one who had stated that credit should be given to him and not to the photographer. It is fairly doubtful nonetheless that a difference between these cases exists inasmuch as it concerns the photographer’s very right to receive credit for work created while in the military. With that in mind, the recent ruling in Ron Ilan has gone against previous rulings, where the photographer’s moral right to pictures they took during their military service was recognized.

Returning to Ron Ilan, the court did state in passing that perhaps it is time to  regulate how IDF spokespersons handle such matters; it would be interesting to see whether IDF spokespersons indeed take up the task and change their policy.

[1] CF 22675-11-14 Ron Ilan v. Mishkal Publishing and Distribution Ltd. (published on Nevo on 27 August 2017)
[2] CF 19114-08-13 Michael Tzarfati v. Dado Tartakover (published on Nevo on 20 July 2015).
[3] CF 69995-04 Shlomo Arad v. Mishkal Publishing and Distribution Ltd., Hadashot 10 and Zmora Bitan Publishing Ltd. (published on Nevo on 27 April 2008).

This article is provided for general information only. It is not intended as legal advice or opinion and cannot be relied upon as such. Advice on specific matters may be provided by our group’s attorneys.

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