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15 Next we are going to hear from Jim Lesar, who
16 is the President of the Assassination Records and
17 Research Center. Welcome, Mr. Lesar.
18 MR. LESAR: Good afternoon, Mr. Chairman.
19 JUDGE TUNHEIM: We are happy to have you back
20 again to advise us today.
21 STATEMENT OF JAMES LESAR
22 MR. LESAR: Thank you, it is a pleasure to be
47
1 here. The questions that the board has asked that are
2 revolving around eminent domain are not really within
3 my expertise, so I face them with some trepidation,
4 particularly after listening to Professor Brauneis's
5 very scholarly exposition pointing up all of the
6 aspects of the statutory language that bear on the
7 questions. I would -- I have a somewhat different take
8 on a couple of matters that may have some bearing on
9 the ultimate issues.
10 First, I think that while it is important
11 always to analyze the bits and pieces of a statute,
12 that those bits and pieces have to be considered in
13 light of the overarching purpose of the statute, and
14 the JFK Act was clearly intended to accomplish a couple
15 of things that are set forth in Section 2 of the Act,
16 "Findings, Declarations and Purposes." And the very
17 first finding, declaration and purpose is that Congress
18 found that all government records related to the
19 assassination of President John F. Kennedy should be
20 preserved for historical and governmental purposes.
21 I think it is very important that the board
22 take actions consistent with that purpose and not lose
48
1 sight of the forest here. I also have a thought
2 regarding whether or not the JFK Act has already
3 effected a taking and it is my view that with respect
4 to the copyright in the film, that the JFK Act has in
5 fact effected a taking by virtue of the very section
6 that the professor has cited, Section 11(a), which
7 provides that the JFK Act in effect overrides all prior
8 statutes.
9 The JFK Act, having been passed subsequent to
10 the copyright act, I think that it overrides the
11 copyright act, and so, the Congress has itself effected
12 a taking of the copyright. Now, that has implications
13 certainly for the value of the film because the value
14 of the -- commercial value of the film is hardly
15 seperable from the copyright in the film.
16 And it also has implications in terms of
17 public access because under both the JFK and the
18 Freedom of Information Act, if it is an assassination
19 record, and I think unquestionably it is, then the
20 public has a right to have copies of the film,
21 certainly at no more than cost. And under the waiver
22 provisions of both acts, the public may also in certain
49
1 instances be able to get them without cost.
2 So that leaves you with the question of the
3 value of the actual physical copy, the camera-original,
4 as divorced from the copyright. And it seems to me,
5 (1) that value is greatly diminished. It certainly is
6 important to have it in the Collection for various
7 reasons.
8 The JFK Act -- Section 4 of the JFK Act also
9 provides that the Archivist in establishing the
10 Collection is to ensure the physical integrity and
11 provenance of all records. I think it is difficult if
12 not impossible to ensure the integrity of the film and
13 its provenance so long as it remains subject to the
14 whim and caprice of private ownership.
15 So I would argue that -- and it seems to me
16 also somewhat ludicrous to argue that Congress did not
17 intend the most important and unique piece of evidence
18 to be in the Collection, to be fully accessible to the
19 public, and I think it needs to be subject to
20 government ownership in order to not only to preserve
21 it but to make sure that with advances in technology,
22 the public may have access to the information provided
50
1 by any advances in technology that can take place.
2 Now, as to one -- there are various scenarios
3 as to how this matter could resolve itself. I have
4 suggested that in fact the Act has already effectuated
5 a taking, and the implication of that is that someone
6 who wanted to put that to the test can file suit under
7 the Freedom of Information and JFK Acts, and seek a
8 court resolution of it.
9 There have been previous attempts to ensure
10 that the Zapruder film be made part of the public
11 dialogue on the Kennedy assassination and that history
12 has first, been the Bernard Geis Associates case, which
13 I think professor Josiah Thompson will inform you about
14 later. The Court ruled that the copies that he made of
15 it for use in his book "Six Seconds in Dallas" were
16 subject to the "fair use" doctrine.
17 Secondly, Professor Melville Nimmer, a noted
18 copyright scholar, and First Amendment scholar,
19 proposed that in a very certain narrow class of cases
20 the First Amendment interest in enlightened democratic
21 dialogue overrides the copyright interest. He gave two
22 examples of that. One, the example of the famous
51
1 photographs of the My Lai massacre. The second, the
2 Zapruder film. And in his opinion it would be
3 unconscionable that the copyright interest would
4 supersede the overwhelming public interest that could
5 not be fulfilled in any other way but through access to
6 the photographs.
7 I think, if I am correct, if the JFK Act has
8 effectuated an expropriation of the copyright, then it
9 would seem bizarre to hold that Congress did not also
10 intend that the original, camera-original, would not be
11 in the possession of the government. For one thing, it
12 would mean that future requesters would not be able to
13 take advantage of advances in technology to request the
14 newly available information.
15 Those are basically my thoughts. I will be
16 happy to answer any questions, if I can.
17 JUDGE TUNHEIM: Let me ask you a question,
18 Mr. Lesar. You were active in the passage of this act,
19 and testified before the Congress, quite active, as I
20 recall. Why don't you think the Congress specifically
21 mentioned the eminent domain issue in the Act?
22 MR. LESAR: I have no idea. I had an input
52
1 into the Act but not into that part of it. I can only
2 say that when I saw Section 11, my immediate reaction
3 was, that takes care of the Zapruder film.
4 MS. NELSON: Mr. Lesar, you heard -- we all
5 heard Professor Brauneis say that -- acknowledge that
6 quite likely, the Court of Claims would have to hear a
7 case, that the LMH Company would in fact probably seek
8 money, seek payment. So part of our task is to perhaps
9 decide how much in fact the American people will be
10 out, taxpayers will be out, if we in fact decide to
11 take the film, under any of these conditions, say it is
12 part of the Act anyway.
13 How far up would you, as someone who has had
14 the Assassination's resources, and so many of the
15 documents, how high should we go? That is to say, it
16 is difficult to compare, but we know, for example, that
17 Bill Gates paid about $20 million for the Leonardo da
18 Vinci Codex. How far should we go? Now, making an
19 assumption here that it is not already included. I am
20 making a different kind of assumption.
21 MR. LESAR: I don't know -- (1) I am not
22 familiar enough with the calculations that would go
53
1 into that to make a very good guess as to it. More as
2 a personal reaction than as a legal matter, I would
3 think that the fair market value should be offset by
4 the very large sums of monies that have been paid out
5 in the past.
6 And I must say that what particularly
7 troubles me about the exercise, which I view as a
8 misuse of the copyright with respect to this film over
9 the past decades, is that it has -- I think it has
10 thwarted the intent of the copyright intention in the
11 Constitution, which I view as ordinarily intended to be
12 to be consistent with the First Amendment.
13 For 12 years after the assassination, the
14 American public did not get to see this film, and that
15 had a devastating impact on the history of the case,
16 delaying its reinvestigation, among other things, by
17 more than a decade. So I would hope that there would
18 be some recognition that the copyright holder has
19 already garnered an enormous windfall profit from this
20 film and would not put the taxpayers to any further
21 great expenditure of funds.
22 MR. HALL: What would your estimation be of
54
1 the amounts that the Zapruders have earned from the
2 copyright?
3 MR. LESAR: Well, I would say that it
4 probably would approach a million dollars, is my guess.
5 You start with 150,000 that we know about for certain.
6 There have been movie producers that paid, reportedly,
7 30 or $40,000 and television producers and others. So
8 I would not be surprised if it approached that figure,
9 but I have no personal knowledge of it. I think that
10 that is something that the Review Board should try and
11 find out if it has to make a determination as to how
12 much should be paid for the film.
13 MR. HALL: Following up on the context of
14 Anna's question, would it be your judgment that -- and
15 let's assume for purposes of argument that the
16 copyright issue is not settled in the way that you
17 believe it should be -- is there any ceiling on what
18 the American people should pay?
19 MR. LESAR: I think there is obviously a
20 ceiling. There is a ceiling to everything short of
21 national survival. But where that ceiling is, I don't
22 know.
55
1 MR. HALL: That is an interesting and
2 important issue here and so is the question of what
3 researchers and scholars might take from the Zapruder
4 film, either in matters of research or matters of
5 authenticity, given the controversy that surrounds the
6 film. Can you speculate for us at all as to what it
7 might mean to a researcher to have this original
8 available?
9 MR. LESAR: I think it means a great deal to
10 the research community. Remember that -- I cited some
11 of the findings of the purpose of this Act, but perhaps
12 the overriding purpose of the Act was to restore some
13 confidence in government. It is very difficult for me
14 to see how you can go to the assassination community
15 and say we have restored confidence in the ability of
16 the government to come to grips with this history and
17 yet we are leaving the single most important piece of
18 evidence in the hands of a private citizen. That seems
19 to me to be self-defeating. It can't be done.
20 MR. HALL: But the crux of that understanding
21 would be that a high-quality copy or a copy made of the
22 Zapruder film before it got into trouble at Time-Life,
56
1 would not be as good as the original?
2 MR. LESAR: Well, it is not only the question
3 of the quality of the original, it is what happened to
4 the original, splicings that took place. There is a
5 history to the original that is important -- and let me
6 just allude to one other thing. The Act says it is not
7 only -- it refers to preserving it for historical and
8 governmental purposes. Now, of course, the odd thing
9 about this film is that it was not seized by the
10 government at the start. This is a criminal case,
11 effective criminal case of the highest magnitude, and
12 evidence is routinely seized in criminal cases and that
13 was not done here.
14 MR. HALL: If I remember my legal precedents
15 well, the rule with regard to seizure and maintenance
16 of evidence is a function of having a criminal
17 proceeding.
18 MR. LESAR: The fact that there wasn't is a
19 consequence of Oswald having been shot. But there is
20 still a possibility, remote though it may be, that at
21 some point there will be a criminal proceeding, and
22 then this provision that preserves it for governmental
57
1 purposes takes precedence. It is inconceivable to me
2 that at that point the government would not assert its
3 interest in the original. Court rules require
4 originals, record copies. There is also a provision in
5 the Act that refers to record copies, the obligation to
6 preserve record copies. The Zapruder film, the
7 camera-original, is the ultimate record copy in this
8 case.
9 MR. HALL: But if 20 years or 25 years from
10 now there is nothing there, what would -- would anyone
11 have any interest in the Zapruder film if in fact the
12 images that are there now --
13 MR. LESAR: If it completely deteriorates
14 into an amorphous mass, I suppose the answer is no.
15 MR. HALL: So it could look like a bad deal
16 to pay out a lot of money to lay claim to something
17 that may not exist in the future.
18 MR. LESAR: That is certainly a
19 consideration.
20 MR. JOYCE: I would like to follow on a
21 related path. You have mentioned in the course of your
22 statement that you thought it was important to preserve
58
1 the film against the development of future
2 technological advances that could assist us in
3 understanding the event, and I am wondering if you
4 could, given your knowledge of the concerns in the
5 research community, if you could tell us what kinds of
6 information or what questions are currently focused on
7 the film as a piece of evidence concerning the
8 assassination and how future developments might assist
9 researchers understand the event.
10 MR. LESAR: As to the technological aspects,
11 it is beyond my ken. I am not a photographer and I am
12 not very well versed in computer science, so I do not
13 know what the potentials are with respect to computer
14 enhancement and other matters. I would suggest that
15 you might solicit the views of experts in those fields.
16 MR. JOYCE: My question was really the aimed
17 at questions that researchers would like to have
18 answers to.
19 MR. LESAR: One obvious thing which was
20 alluded to by Mr. Gunn in this presentation is the
21 material between the sprocket holes. About 20 percent
22 of the exposed surface of the original film falls
59
1 between the sprocket holes. It is not reproduced on
2 the film copies of the original. However, it can be
3 reproduced through slides. So it requires the original
4 in order to capture that information, and that, I
5 think, is certainly a priority in the research
6 community, is having a high-quality copy made of the
7 camera-original that will reproduce the material
8 between the sprocket holes. So that is one. Now,
9 there are other issues which I am less familiar with
10 but I hear rumblings of them in the hinterlands,
11 questions about authenticity of the film, and
12 alterations of the film, and so forth. I am not really
13 qualified to speak about those.
14 JUDGE TUNHEIM: One final question, Mr.
15 Lesar. Your point that you made earlier, that any
16 award of financial costs for taking of this film should
17 be offset by the costs that the family has made off the
18 film, and I understand that completely from a visceral
19 kind of reaction. Are you aware of any kind of cases
20 that would establish that principle that we can look
21 at?
22 MR. LESAR: No, I am not. However, I haven't
60
1 had any chance to research the issue. But I am not
2 aware of any.
3 Returning to Professor Joyce's question, some
4 of the other questions are the obvious ones that relate
5 to the sequence and timing of shots, the direction of
6 shots, where the wounds are located, the movements of
7 witnesses, the movements and reactions of Secret
8 Service personnel, Dallas Police Department personnel,
9 all of those things are of interest to the research
10 community.
11 JUDGE TUNHEIM: Thank you Mr. Lesar. We
12 appreciate your time.