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Testimony of Jeremy Gunn

Before the ARRB, April 2, 1997

21                STATEMENT OF T. JEREMY GUNN

22             MR. GUNN:  Thank you, Mr. Chairman, members                                                   7

 1   of the Review Board, Dr. Marwell.  The meetings of this 

 2   board are regulated by the federal law called the 

 3   "Government in the Sunshine Act."  Under the Sunshine 

 4   Act, the Review Board's deliberation should be open to 

 5   the public except to the extent that the deliberations 

 6   would involve issues relating to national security or 

 7   certain types of legal strategy.  

 8             The vast majority of the board's 

 9   deliberations to date have been in closed meetings 

10   where issues of national security have been discussed 

11   in the records that the board has reviewed. 

12             The question now before the board is what 

13   action it should take -- if any -- with regard to the 

14   disposition of the original Zapruder film.  It 

15   necessarily involves discussion of issues that are 

16   properly within the public domain but it also involves 

17   issues that may involve some type of legal strategy.  

18   In my opinion the board is acting properly in holding 

19   this open meeting and -- to the greatest extent 

20   possible -- deliberating publicly about issues that are 

21   of public concern.  

22             I would like to provide a little bit of 


 1   background about the Zapruder film.  The conventional 

 2   story of the Zapruder film is as follows.  Mr. Abraham 

 3   Zapruder was a clothing manufacturer in Dallas, Texas, 

 4   who had -- his company was located near Dealey Plaza.  

 5   On November 22nd, Mr. Zapruder took this late model 

 6   Bell & Howell Zoom Camera containing double 8 mm Kodak 

 7   film to Dealey Plaza to record the presidential 

 8   motorcade.  The film that he took there is now 

 9   universally regarded as including some of the most 

10   important images of the actual assassination.  

11             After the motorcade passed, the Secret 

12   Service learned of his film and accompanied him to a 

13   Kodak laboratory in Dallas where the original film was 

14   developed.  They then went to Jamieson Film Company 

15   which made three copies, which I will refer to as the 

16   "first-day copies," of the original film.  Two of those 

17   first-day copies were loaned to the Secret Service and 

18   are now in the hands and in the custody of the National 

19   Archives.  They are the property of the U.S. 

20   Government.  The third first-day film, along with the 

21   original, was subsequently sold, as I will get into in 

22   a moment.


 1             Now, when I refer to the terms "original" and 

 2   "camera original" I am describing what is generally 

 3   thought to have been the film that was actually in Mr. 

 4   Zapruder's camera at the time the motorcade passed.  I 

 5   will use the term "copy" to refer to any image that was 

 6   made from that original film.  

 7             Some researchers believe that what we are 

 8   calling here today the camera-original may not in fact 

 9   be the camera-original film.  I am going to continue to 

10   use the term "camera original" to describe what is 

11   commonly understood without any prejudice to whether 

12   that is in fact the original film or whether there may 

13   indeed be a copy -- or a film that precedes that. 

14             Shortly after the film was developed, Mr. 

15   Zapruder sold the original film and his remaining 

16   first-day copy to Time, Inc.  Although there has been 

17   some controversy in the past regarding the amount that 

18   Mr. Zapruder was actually paid by Time, Inc., the 

19   record reflects that he received a $25,000 cash 

20   payment, which he then gave to the Dallas Police 

21   Department for the widow of Officer Tippett, and he 

22   received subsequent payments totaling approximately 


 1   $150,000 over a several-year time span.  Life Magazine, 

 2   which then had the original film, published some frames 

 3   of the Zapruder film as early as November 29th, 1963, 

 4   and in some subsequent issues during the following two 

 5   years.

 6             In 1975, Time-Life sold the original film to 

 7   LMH Company for $1.  The shareholders of LMH Company 

 8   are the widow and children of Mr. Zapruder, who now is 

 9   deceased.  In 1978, LMH Company placed the original 

10   film in the National Archives under a storage 

11   agreement.  LMH Company believes today that it 

12   currently possesses legal title to this film that is 

13   now located in the National Archives.  

14             Although the public does not now have access 

15   to the original film, this would not necessarily change 

16   if the U.S. Government were to have -- have possession 

17   rights over the original film.  The Archives keeps the 

18   film in cold storage at what I understand to be 25 

19   degrees Fahrenheit in archivally-sound conditions.  The 

20   original film, due to shrinkage, cannot now be shown on 

21   a standard motion picture projector.  

22             The possible uses of the original today would 


 1   thus be presumably limited to forensics examinations of 

 2   the film as well as to making master copies of the 

 3   film, either internegatives or interpositives of the 

 4   film.  At the Archives today there are slide copies of 

 5   the film that are available for examination.  Copies of 

 6   individual frames as well as the film itself are widely 

 7   available to the public in books, magazines, in videos, 

 8   motion pictures, and there is even a version on CD-ROM.

 9             One of the questions the board needs to 

10   consider under the JFK Act is whether the Zapruder film 

11   is an assassination record within the meaning of the 

12   Act.  The Review Board's authority, of course, derives 

13   from the JFK Act which was passed by Congress in 1992.  

14   The JFK Act itself provides for the "expeditious public 

15   transfer" of "assassination records" to the National 

16   Archives.  So the question is raised, is this Zapruder 

17   film an "assassination record" that should be in the 

18   JFK Collection at the Archives and essentially, should 

19   that be Federal Government property rather than the 

20   property of private citizens.  

21             To some extent, the statute answers at least 

22   part of this question.  Under JFK act an assassination 


 1   record includes, among other records, any -- any 

 2   "record that is related to the assassination of 

 3   President John F. Kennedy that was made available for 

 4   use by the Warren Commission."  The record reflects 

 5   that the Zapruder film -- the original Zapruder film 

 6   was explicitly and specifically requested by the Warren 

 7   Commission and the Warren Commission and the staff were 

 8   shown versions of the -- or shown the original Zapruder 

 9   film.  

10             This would seem to suggest that within the 

11   statutory definition, the Zapruder film qualifies as 

12   being an assassination record.  Moreover, the board 

13   independently, from prior statements, believes that the 

14   original film is an assassination record within the 

15   meaning of its own regulations.  

16             Now, at this public hearing today there are 

17   things that I understand the board will be doing and 

18   things they will not be doing.  In order that there be 

19   some clarity, I will try to suggest some of the things 

20   that I think the board is not going to be doing.  

21             The board is not seeking comment from the 

22   public regarding whether the Zapruder film is one of 


 1   the most important records of the assassination.  The 

 2   reason the board would not be considering this is that 

 3   is a foregone conclusion that that is the case.  The 

 4   board already acknowledges this.  Nor is there a 

 5   question whether the Zapruder film is an assassination 

 6   record under the JFK Act, as I have just outlined.  Nor 

 7   does the board question whether in the ideal world 

 8   where no costs are involved, whether the Zapruder film 

 9   ought to be possessed by the U.S. Government and placed 

10   in the Archives.  

11             The board is also not undertaking any 

12   examination regarding the authenticity of the Zapruder 

13   film although it is aware of the controversy 

14   surrounding those allegations.  The board also is not 

15   holding a hearing on whether LMH Company possesses 

16   legal title to the Zapruder film.  That would -- to the 

17   extent that that is a controversy, that would be a 

18   matter for the courts.  Similarly, the board is not 

19   evaluating the validity of LMH Company's copyright 

20   interests in the film.  That also would be a matter for 

21   the courts.

22             Rather, the core question for the board today 


 1   is whether it should undertake an action that would 

 2   effect a taking, in constitutional terms, of the 

 3   original film or whether the board should seek a 

 4   negotiated arrangement with the Zapruder family, now 

 5   LMH Company, that would attempt, to (A) make 

 6   high-quality copies of the Zapruder film easily 

 7   available to the public for the first time; (B) provide 

 8   forensic testing of the film to determine in part any 

 9   questions related to authenticity; and (C) would ensure 

10   the U.S. Congress has an option, if it so chooses, to 

11   purchase the film.  

12             The choice, then, for the Review Board is, to 

13   some extent, should the film be taken and transferred 

14   to the JFK Collection in the Archives or should a 

15   negotiated arrangement be made that would include some 

16   terms that would include making copies of the film 

17   easily available to the public.  

18             I would like to outline the parameters of the 

19   two options before to the board.  The first one is the 

20   taking option.  The first witness who will following 

21   me, Professor Brauneis, will discuss some of the 

22   constitutional and statutory issues involving how the 


 1   Federal Government takes private property for public 

 2   use.  I am in somewhat of a quandary in that I am the 

 3   general counsel for the board and the board is entitled 

 4   to my confidential legal advice, which I have attempted 

 5   to provide, and I believe it would be inappropriate for 

 6   me to express my own opinions on this matter in this 

 7   particular forum.  But Professor Brauneis will examine 

 8   those issues from his perspective.  

 9             Should the Review Board believe that a taking 

10   is appropriate, it would instruct, presumably, the 

11   Archivist of the United States that the Zapruder should 

12   be transferred to the JFK Collection at the Archives.  

13   To what extent that is a paper transfer, the film would 

14   continue to be stored in exactly the same location.  

15   But rather than having the LMH Company be recorded as 

16   the owner, the U.S. Government would be the owner of 

17   the film.  

18             Although there are several possible 

19   developments that might follow that instruction by the 

20   board, one likely scenario is that LMH Company would 

21   then sue the Federal Government in the United States 

22   Court of Federal Claims and demand just compensation 


 1   for having been deprived of its property.  The 

 2   Department of Justice would then presumably represent 

 3   the United States and the Review Board in any following 

 4   litigation.  

 5             If the Court were to agree that the Review 

 6   Board has the authority to transfer the film, the Court 

 7   would then, presumably, determine the value of the film 

 8   in order that LMH Company be compensated out of funds 

 9   from the U.S. Treasury.  Under this particular scenario 

10   Congress would not need to make any particularized 

11   appropriation of funds for the film, although payments 

12   nevertheless are derived from funds appropriated by 

13   Congress for this litigation fund.

14             If the board were to attempt a negotiated 

15   arrangement option, it would likely follow along the -- 

16   likely contain the following provisions.  First, LMH 

17   would agree to make the best available copy of the 

18   Zapruder film using the best available technology -- 

19   best available current technology.  The high-quality 

20   copy would include images that are between the sprocket 

21   holes on the original film.  A digitized version of 

22   this film or of the original film could then be made. 


 1             Second, LMH would agree to make this 

 2   high-quality copy available to researchers for their 

 3   individual use.  Thus, to the extent that LMH has a 

 4   perfected copyright interest in the film, they would 

 5   agree to license, to some extent, the use of the 

 6   high-quality images.

 7             Third, although it would be -- copies would 

 8   be available at cost to the public from the Archives, 

 9   LMH would nevertheless continue to possess whatever 

10   copyright interests it would have in the film.  Thus, 

11   although members of the public could then easily 

12   purchase for the first time high-quality images of the 

13   film for their individual use, the license agreement 

14   with the Archives would not provide that members of the 

15   public would be entitled to make subsequent commercial 

16   use of the film.  So a member of the public could 

17   request the film, obtain a copy of it, but they could 

18   not then, under this arrangement, go out and 

19   redistribute that or put it into a movie or put it into 

20   a book and make profits on it.

21             Fourth, Congress would be given an option to 

22   purchase the film.  Such an option could be formulated 


 1   in different ways.  Nevertheless, an agreement would 

 2   provide that Congress would be given an opportunity to 

 3   purchase the film and place that in the Archives, or 

 4   have the government have permanent possession of it in 

 5   the Archives.  

 6             Finally, the basic term that would likely be 

 7   involved in such a negotiated agreement, the government 

 8   would be able to conduct all appropriate forensics 

 9   tests of the original film, including any and all tests 

10   that would reasonably answer the question of the film's 

11   authenticity.

12             I think that there are a few questions the 

13   board ought to consider from the experts who have been 

14   called here today and from other members of the public 

15   who will be speaking and I would like to give some 

16   suggestions of the sorts of questions that would be 

17   appropriate.

18             First, in regard to the camera-original film, 

19   does the original Zapruder film possess an intrinsic 

20   historical value such that the Review Board should take 

21   action to ensure that the original is kept at the 

22   National Archives regardless of costs?


 1             Second, what harms my befall the original if 

 2   the government does not acquire the film, for example, 

 3   could a private purchaser purchase the film from LMH 

 4   Company, cut the film into individual frames and then 

 5   sell it to the public, thus destroying the integrity of 

 6   the original film?  

 7             Another question: is the original film a 

 8   wasting asset in the sense that it has deteriorated 

 9   over time and that it will continue to deteriorate over 

10   time, so that conceivably, a copy of the film right now 

11   might be worth more for its evidentiary value than 

12   would the original film be 20 years from now?  That is 

13   a question for the experts.  

14             Over time will a copy -- the next question, 

15   could a high-quality copy of the film which includes 

16   images between the sprockets satisfy all of the 

17   legitimate needs of researchers and scholars, and if 

18   not, which specific needs would not be satisfied by a 

19   copy of the original?  

20             Another question is could such needs be 

21   addressed by the government's conducting a forensics 

22   examination.  Could a panel of experts be assembled who 


 1   could look at the the original film and make 

 2   determinations regarding either speed at which the film 

 3   went, the significance of the images between the holes 

 4   and other technical questions that have come up 

 5   regarding the Zapruder film?

 6             Finally in this area there is the question of 

 7   whether possible future technology not known today 

 8   using the original film may be able to answer questions 

 9   that cannot be answered through current technology. 

10             Questions that would seem to be also 

11   appropriate for the question of whether there is the 

12   statutory authority to take the film are as follows:

13             What actions may the Review Board legally and 

14   properly take in order to ensure that the public has 

15   access to the original and to high-quality copies of 

16   the film?  

17             If the board believes that the film should be 

18   owned by the U.S. Government, should the taking be by 

19   an action of the Review Board or is that an action that 

20   should be taken by Congress?  

21             Another question is whether the Review Board, 

22   under the JFK Act, has as the legal authority to take 


 1   the Zapruder film.  

 2             Another question is what are the possible 

 3   consequences of the board's attempting to take the 

 4   original film?  What are the possible consequences of 

 5   the board's not attempting to take the original film?

 6             Another question which may be of interest to 

 7   the board is what monetary value should be attached to 

 8   the film?  Now, I should say to the public here that 

 9   the board has received, in confidence, monetary 

10   appraisals of the Zapruder film that were conducted by 

11   experts retained by the Department of Justice and by 

12   LMH Company in cooperation with each other.  So the 

13   board has had some information which is currently 

14   protected on some valuations, which the board is free 

15   to either accept or reject in its best judgment.

16             To say that the Zapruder film is invaluable 

17   or is important does not really answer the question of 

18   what monetary value should be attached to the film.  If 

19   the film were taken by the JFK Act or if Congress were 

20   to purchase the film, the legal owner would still need 

21   to be compensated.  How much should the government pay 

22   to compensate the original owner?  


 1             Finally, is there a cost beyond which the 

 2   government should not take the original?  Should it be 

 3   that up to a certain amount it would be appropriate for 

 4   either the Review Board or the Congress to take the 

 5   film but beyond that amount it would not be 

 6   appropriate?  

 7             Those are all questions confronting the 

 8   board.  And finally, the question that the board should 

 9   consider is whether the board, if it decides not to 

10   take action to take the Zapruder film -- should it urge 

11   Congress to take the film?

12             Thank you very much.  

13             JUDGE TUNHEIM:  Any questions or comments for 

14   Mr. Gunn while we have him up here? 

15             MR. BUNN:  That is my favorite kind of 

16   question.

17             JUDGE TUNHEIM:  Thank you.  As usual, you 

18   have raised a lot of questions for us to ponder today.

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