DeeCee - 7:59 pm on Feb 29, 2012 (gmt 0)
Notice, BTW, that in this case the ad producer can very likely be seen as getting off free.
Long before we started having discussions about digital photo copyright, professional photographers have always had certain rules to follow. It is part of the basic training of any photographer, that unless it is a random photo part of a news report, the photographer always need a signed "model release" form. To be kept on file as the image is sold.
A news-reporter gets a pass from photographing people in a protest march for example if part of the reporting, but often can be sued, if the non-released photo suddenly is sold to a stock-photo site or an advertising agency. The person's "right to their own image".
What the story does not tell us is where the photo came from. The soldier obviously posed for a nice photo, and as such was a sort of willing participant. The question for the source (stock-photo, ad-company, photographer) to answer was the context. Did he merely pose for a visiting photographer doing a news-story about for example the Afghan war, or did he in fact sign a model-release (maybe without thinking about what his image might really be used for, and maybe as his whole team signed forms en-masse without thinking).
Also into play is maybe an issue of whether this soldier was photographed as part of his normal "paid-for-by-taxes, public job". Potentially putting the image into the public domain. (I do not know.)
That is the bottom-line of whether this is a case of infringement. Does the original photographer have the required model-release or other type of legal release. There is not much likelihood that the soldier's now suing parents would have enough knowledge of what went on in Afghanistan until the court case shows it.
The secondary issue then becomes whether a potential infringement passes all the way from the selling photographer, through stock-photo site, though ad-creators, to all involved web-sites. :)