Return to our Home Page
Return to our Zapruder Film Page
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.