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Mark Zaid and Charles Sanders help define "assassination
record"
in testimony before the ARRB in Washington, D.C., 10/11/94
Introduction
Although Mark S. Zaid, J.D., may only be known for being a "freedom of information" attorney specializing in the assassinations of Presidents Kennedy and Lincoln, his law firm specializes in much wider issues.
Zaid's law practice focuses on representation of federal employees (especially intelligence officers), journalists and others who may have a dispute with an agency of the U.S. or a foreign government. Subject areas include national security matters, security clearance disputes, Freedom of Information/Privacy Act litigation, defamation, sovereign and diplomatic immunity, as well as international business development.
He has recently served as Chairman of the ABA Task Force on Proposed Protocols of Evidence and Procedure for Future War Crimes Tribunals.
Background
A civil suit filed in U.S. District Court on November 23, 1998, challenges the government's plan to acquire the film Abraham Zapruder took of the assassination of President Kennedy.
The suit takes issue with the "fair price" negotiations between the Department of Justice and Zapruder's heirs. Zapruder's heirs desire to maintain the copyright and retain control of the film.
"The current negotiations give the public no benefit because the copyright is not part of the package that the American people will own," says Mark Zaid, an attorney for the Assassination Archives and Research Center, a nonprofit Washington organization that maintains one of the largest private collections of records on the assassination.
"The taxpayers are going to spend millions to gain possession of the film, but it's not going to give the public any greater use or control over it," Zaid said. "It's ridiculous. It's just plain ridiculous."
In the suit, Zaid argues that the Justice Department had no right to exclude the copyright from the negotiations. If the government acquired the film -and- copyright, the public would be better able to access the film.
The suit also challenges the validity of the copyright itself.
Zaid contends the Zapruder family abandoned claims to the copyright when it did not always pursue legal action against those who infringed upon it. And the plaintiffs argue that the Zapruders charge excessive fees - as much as 50 times the industry standard -- that restrict use of the film.
Washington "superlawyer" Robert Bennett, having completed defending President Clinton in the Paula Jones case, is representing the Zapruder family. He expectedly denounced Zaid's charges as "grossly unfair" and "false."
The ARRB - Assassination Records Review Board - declared the Zapruder film the permanent possession of the American people, beginning in August of 1998. The Zapruder family has not yet been compensated, because those negotiations have broken down. In October, the Zapruders and the Justice Department agreed to arbitration - with the price not to exceed $30 million.
In addition to the ASSASSINATION ARCHIVES & RESEARCH CENTER, a firm named PASSAGE PRODUCTIONS, L.L.P. is listed as a Plaintiff. They claim they cannot afford the current fee for use of the Zapruder film in a proposed documentary film. The fee could amount to $15,000. every time the film is broadcast.
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ASSASSINATION ARCHIVES & RESEARCH CENTER 918 F Street, N.W., Suite 601 Washington, D.C. 20008 and PASSAGE PRODUCTIONS, L.L.P. 33 Strabane Court Baltimore, Maryland 21234 Plaintiffs, v. Civil Action No. 98-______ THE LMH COMPANY c/o Henry G. Zapruder 1001 22nd Street, N.W. Washington, D.C. 20036 and U.S. DEPARTMENT OF JUSTICE 10th and Pennsylvania Avenue, N.W. Washington, D.C. 20535 and NATIONAL ARCHIVES AND RECORDS ADMINISTRATION 8601 Adelphi Road College Park, Maryland 20740-6001 Defendants. * * * * * * * * * * COMPLAINT The plaintiffs bring this action against the LMH Company (LMH), the Department of Justice ("DOJ") and the National Archives and Records Administration ("NARA") for injunctive, declaratory and monetary relief pursuant to the Copyright Act of 1976, 17 U.S.C. 101 et seq,, the Freedom of Information Act, 5 U.S.C. ? 552(a) et seq., the Administrative Procedure Act, 5 U.S.C. ? 701 et seq., the Federal Declaratory Judgment Act, 28 U.S.C. 2201, and the First and Fifth Amendments to the Constitution of the United States. JURISDICTION 1. This Court has jurisdiction over this action pursuant to 5 U.S.C. 552 (a)(4)(B), 702, 28 U.S.C. 1331 and the First and Fifth Amendments to the Constitution. VENUE 2. Venue is appropriate in this District under 5 U.S.C. ?? 552(a)(4)(B), 703, and 28 U.S.C. 1391. PARTIES 3. Plaintiff Assassination Archives & Research Center ("AARC") is a non-profit organization established under the laws of the District of Columbia to promote scholarly research into political assassinations and related matters. It maintains one of the largest collections of documents in the world on the assassination of President John F. Kennedy. 4. Plaintiff Passage Productions, L.L.P. ("Passage") is a partnership under the laws of the State of Maryland and produces documentary films. It is currently producing a documentary on the assassination of President Kennedy. 5. Defendant LMH is a Texas corporation that alleges it owns the copyright of the film taken by Abraham Zapruder of the assassination of President John F. Kennedy. It is operated by the children and heirs of Abraham Zapruder - Lillian Zapruder, Myrna Faith Hauser and Henry Zapruder (the initials of the first names of Lillian, Zapruder's widow, and Myrna and Henry, their two children, comprise the acronym LMH). 6. Defendant DOJ is an agency within the meaning of 5 U.S.C. 552 (e) and is handling the negotiations with LMH to determine the appropriate amount of compensation to provide for the taking of the Zapruder Film. DOJ is also in possession and/or control of the records requested by the AARC and Passage which are the subject of this action. 7. Defendant NARA is an agency within the meaning of 5 U.S.C. 552 (e) and is in possession and/or control of the records requested by the AARC and Passage which are the subject of this action. BACKGROUND 8. On November 22, 1963 - 35 years ago - President John F. Kennedy was assassinated in Dallas, Texas as his limousine drove through Dealey Plaza and by the Texas School Book Depository Building ("TSBD"). 9. In anticipation of President Kennedy's passage through Dealey Plaza, hundreds of people lined the streets to view his motorcade. Dozens of viewers stood between the TSBD and an area that has become known as the "Grassy Knoll". Included among this group of soon-to-be witnesses was Abraham Zapruder ("Zapruder"), a Dallas dressmaker. 10. At the urging of one of his secretary, Zapruder returned to his office and retrieved his 8 mm Bell & Howell movie camera. From an ideal vantage point, Zapruder filmed 26 seconds of an astonishing and disturbing event: the assassination of the thirty-fifth president of the United States ("Zapruder Film"). Of all the films taken during the time President Kennedy was in or around Dealey Plaza, the Zapruder Film is considered the most reliable and best evidence of one of the most famous murders in history. 11. After being contacted by a Time-Life reporter, Zapruder sold all rights to the film to Time, Inc. by agreement dated November 25, 1963. Upon information and belief, the final agreement required Zapruder to sell the camera original (the film that ran through the camera) and all three first-generation copies of the Film that were made by Eastman Kodak in Dallas, together with all Zapruder's rights, title, and interest "whether domestic, foreign, newsreel, television, motion picture, or otherwise" of the film. In exchange, Zapruder, "or [his] heirs", as was written in and initialed by both parties, would be paid $150,000 with one installment of $25,000 being paid immediately, a second $25,000 being paid on January 3, 1964, and four other $25,000 installments to be paid on subsequent January 3rds through 1968. 12. Upon further information and belief, Zapruder would also receive half of all gross receipts from all sources after Time, Inc. had received back $150,000 worth of sold rights according to an included schedule. Time, Inc. reserved for itself unlimited free use of the material on its own behalf. The agreement was to last as long as the copyright secured the film rights, and provided that if these rights were sold or transferred, it would be done so subject to this agreement with Zapruder. Time Inc. also agreed to "...present said film to the public in a manner consonant with good taste and dignity." The letter of agreement was signed by Zapruder and accepted and agreed to by a representative of Time, Inc. 13. Upon information and belief, Zapruder was concerned with potential accusations of his profiteering from the assassination. Furthermore, he was particularly concerned that his being Jewish might raise negative connotations. To minimize any adverse publicity, he requested that Time, Inc. not reveal the final amount he was to be paid. Following a recommendation by Zapruder's attorney, Sam Passman, Zapruder agreed to donate the first installment of $25,000 to the fund established for slain Dallas police officer J.D. Tippet, who was killed allegedly by Lee Harvey Oswald the same day as the President. The donation was made public on November 27, 1963 and the press reported that Zapruder's donation constituted the entire sum he was paid for the film. No efforts were taken by Zapruder to discourage this interpretation. 14. In its November 29, 1963 issue Life Magazine ('Life'), which was owned by Time, Inc., published approximately 30 frames of the Zapruder Film. Frames were also published in the December 7, 1963 special "John F. Kennedy Memorial Edition" ('Memorial Edition') and in issues dated October 2, 1964, November 25, 1966, and November 24, 1967. In one issue Life reproduced the frames depicting the fatal head wound suffered by the President. However, Life reversed the order of frames Z-312 and Z-313; the two frames that depicted the exact moment President Kennedy's head was struck by a bullet and the resulting effect. This act gave the visual impression that the impact of the bullet upon President Kennedy forced him to propel forward while the true depiction was that his head first went forward and then was thrust to the rear and to the side. 15. In October 1964, the U.S. Government Printing Office released 26 volumes of testimony and evidence compiled by the President's Commission on the Assassination of President John F. Kennedy, more popularly known as the Warren Commission after its chairman Supreme Court Chief Justice Earl Warren. Volume 18 of the Commission's Hearings reproduced 158 frames of the Zapruder Film. During the tenure of the Warren Commission the Zapruder Film, or copies thereof, were examined and/or in the possession of the Commission. 16. Upon information and belief, in or about September 1966, Professor Josiah Thompson approached Bernard Geis and Associates with a preliminary draft of his book Six Seconds in Dallas, which examined the photographic evidence of the assassination. Following a meeting between Geis Associates and Life, Thompson became a special consultant to Life, which in November 1966 had publicly urged a re-examination of the assassination. Life gave Thompson free access to their first generation copy of the Zapruder Film and their large format transparencies of individual frames. Upon further information and belief, by February 1967, however, Life's interest in an investigation had significantly diminished. 17. On or about May 15, 1967, Time, Inc. registered the Zapruder Film in the U.S Copyright Office as an unpublished "motion picture other than a photo play" pursuant to the Copyright Act of 1909. The three issues of Life Magazine published prior to this date that contained frames of the Zapruder Film had been registered as "periodicals" with the Copyright Office. The Life Magazine Memorial Edition, which contained frames of the film, however, was registered with the Copyright Office as a 'book.' 18. In the Fall of 1967, Thompson's book was ready for publication. Upon information and belief, Thompson requested that Time, Inc. provide him with reproduction rights for a group of individual Zapruder frames, but it refused. Although Geis offered to turn over all profits to Time, Inc. in exchange for the right to use these frames in the book, Time, Inc. still refused. As a result, Geis and Thompson decided to use charcoal sketches of the frames as rendered by an artist. 19. Upon information and belief, Time, Inc. viewed the publication of Thompson's book on November 18, 1967 as a gross infringement upon its private property copyright. Following the book's publication, Time, Inc. filed suit against Geis Associates, Thompson, and the book distributor, citing copyright infringement and seeking to halt the sale and distribution of the book and to recover damages. 20. On September 24, 1968, the United States District Court for the Southern District of New York ruled that the Time, Inc. copyright had not been violated by invoking the doctrine of fair use. The Court held that "there is a public interest in having the fullest information available on the murder of President Kennedy. Thompson did serious work on the subject and has a theory entitled to public consideration. The book is not bought because it contains the Zapruder pictures; the book is bought because of the theory of Thompson and its explanation supported by Zapruder pictures." 21. Upon information and belief, during the 1960s, various individuals sought to sell copies of the Zapruder Film and/or its frames including, but not limited to, attorney-author Mark Lane and author Penn Jones. Upon further information and belief, Time, Inc. and/or Zapruder were aware of these actions but intentionally declined to take steps to enforce their copyright. 22. In 1969, the Zapruder Film was subpoenaed by Louisiana's New Orleans's District Attorney Jim Garrison and shown during the criminal conspiracy trial against Clay Shaw. This was the first public showing, albeit limited to the courtroom, of the Zapruder Film in its motion picture format. 23. Abraham Zapruder died in 1970. At the time of Zapruder's death the first term of copyright on the film had yet to expire. 24. On or about March 6, 1975, Geraldo Rivera publicly aired a bootleg copy of the Zapruder Film on his ABC television talk show, Good Night America. Upon information and belief, ABC requested permission from Time, Inc. to show the Film but was informed that the Film was not available at any price. Notwithstanding Time, Inc.'s response, the Film was aired nationally by ABC. Upon further information and belief, Time, Inc. subsequently sent ABC a release allowing them to use the Film free of charge. Shortly thereafter, Henry Zapruder, the son of Abraham Zapruder, contacted Time, Inc. and requested it to sue ABC, particularly because the Zapruder family was to receive 50% of all subsidiary monies generated by the Film. When Time, Inc. refused to sue ABC, Henry Zapruder threatened to sue Time, Inc., pursuant to the provisions of the original contract. 25. Upon information and belief, as a result of this dispute, Time, Inc. decided to sell the Film back to the Zapruder heirs for $1. On or about April 9, 1975, the copyright was assigned from Time, Inc. to Lillian Zapruder, Henry Zapruder, and Myrna Faith Hauser; the three of whom later formed the LMH Company that now holds the copyright. The assignment of copyright however, contained a provision that Time, Inc. would retain unlimited non-exclusive print rights to the Zapruder frames. 26. Upon information and belief, Time, Inc. wanted to donate the film to the U.S. government, but the Zapruder family refused to consent. 27. In or around 1976, Robert Groden and F. Peter Model authored a book entitled JFK: The Case for Conspiracy (New York: Manor Books), in which was contained all or part of 22 frames of the Zapruder Film. Although this book was on the best seller list for several weeks, no action was ever brought against the authors for copyright infringement. Upon information and belief, the Zapruder family and LMH were aware of the publication of the book. 28. In or around 1978, the Zapruder family and/or LMH transferred the film to NARA for appropriate preservation and safe-keeping. 29. During 1976-79, the assassination of President Kennedy was investigated by the House Select Committee on Assassinations of the House of Representatives ("HSCA"). During the tenure of the HSCA, the Zapruder Film, or copies thereof, was examined and/or in the possession of the HSCA. 30. In 1988, Gerard Alexander Selby, Jr. produced a television documentary titled Reasonable Doubt which examined what has become known as the Single Bullet Theory (whether or not President Kennedy and Governor John Connally were hit with the same bullet). Selby had contacted Henry Zapruder on numerous occasions dating back to 1985 in an effort to obtain a license for the Zapruder Film for use in his documentary. In 1988, Henry Zapruder informed Selby that the fee for using the Film was $30,000. Given that the total cost to complete the documentary was $18,000, the license fee could not be paid. 31. On or about October 20, 1988, Selby and Harold Weisberg, an author of several Kennedy assassination books, filed suit against Henry Zapruder and the LMH Company asserting that utilization of the film constituted fair use and that the Zapruder family and LMH had abandoned the copyright due to selective enforcement. The action was subsequently settled out of court without a substantive ruling. 32. Upon information and belief, in or around 1991, director Oliver Stone paid approximately $85,000 for use of select frames of the Zapruder Film in his major motion picture JFK. 33. On or about October 26, 1992, President Bush signed into law the John F. Kennedy Records Collection Act of 1992 ("JFK Act") which sought to preserve for historical and governmental purposes all records related to the assassination of President Kennedy. The Act created the President John F. Kennedy Assassination Records Collection at NARA and required the expeditious public transmission to NARA and public disclosure of all assassination records. 34. The Act defined the term "Assassination record" to include records that were "made available for use by, obtained by, or otherwise came into the possession of," but not limited to, the Warren Commission, the HSCA and NARA. The term "record" included, among other items, sound or video recordings. The Act further stated that when it "requires transmission of a record to the Archivist or public disclosure, it shall take precedence over any law (except section 6103 of the Internal Revenue Code), judicial decision construing such law, or common law doctrine that would otherwise prohibit such transmission or disclosure, with the exception of deeds governing access to or transfer or release of gifts and donations of records to the United States Government." 35. Upon information and belief, upon the enactment of the JFK Act on October 26, 1992, the Zapruder Film was automatically designated an 'assassination record' and therefore became official property of the United States government and the copyright, should it still have existed with LMH, was placed in the public domain. 36. In or about March 1993, James L. Silverberg ('Silverberg'), the attorney for the Zapruder family and/or LMH, became aware that the JFK Act may have destroyed the copyright held by the Zapruder family and LMH, and that the film may have been effectively taken by the government. Upon information and belief, Silverberg immediately contacted representatives of NARA and demanded the return of the film. NARA officials, however, refused to comply. 37. In or around 1994, the Arts & Entertainment television network ("A & E") produced a series on the United States Secret Service and sought permission to use the Zapruder Film. Upon information and belief, attorney Silverberg, acting as LMH's representative, informed A & E that the fee for such use was $50,000. As A & E could not afford to pay this fee, the Zapruder Film was not used in the broadcast. 38. Upon information and belief, the fee that LMH attempts to charge for use of the film, which it purports remains under copyright protection, is in gross excess of standard rates for other news footage. For example, the fee charged by NBC for documentary footage rights is $73 per second. NBC News owns footage of the murder of Lee Harvey Oswald by Jack Ruby. No premium is placed on licensing this footage despite its obvious historical value. Thus, if NBC were to license the Zapruder Film, according to NBC's standard rate card, the cost would be: 26 seconds at $73 per second = $1,898. In other words, the going licensing rate for documentary film use of the Zapruder Film in its entirety, if it were protected by copyright, should be approximately $2,000. Since Zapruder is oftentimes charging $50,000 or more for use of the film, this may amount to approximately $1,923 per second or approximately 26 times what NBC would charge for the same footage. 39. On April 24, 1997, the Assassination Records Review Board ("ARRB"), which was created by the JFK Act, announced a 'Statement of Policy and Intent with Regard to the Zapruder Film.' The ARRB re-affirmed that the Zapruder Film is an "assassination record" within the meaning of the JFK Act and directed it to be transferred on August 1, 1998 from its present location in NARA's film collection to the John F. Kennedy Assassination Records Collection maintained by NARA. Upon information and belief, this 'Statement of Policy and Intent' did not constitute a taking of the Zapruder Film but merely a re-affirmation of the taking that had occurred with the passage of the JFK Act in 1992. 40. Upon information and belief, many television stations, networks and programs have used or intend to use, the Zapruder Film without paying any copyright royalties to LMH or the Zapruder family. 41. Passage is currently producing a documentary film on the assassination of President Kennedy in which frames of the Zapruder Film will be used. Permission has been sought from LMH to use the Zapruder Film but the excessive fees requested by LMH can not be paid. Despite not having paid LMH, Passage nonetheless intends to use frames from the Zapruder Film. Additionally, the AARC wishes to use frames of the Zapruder Film for educational purposes and will be unable to pay the excessive fees requested by LMH. 42. Upon information and belief, on or about August 1, 1998, the Zapruder Film was transferred to the John F. Kennedy Assassination Records Collection at NARA. This transfer did not require a physical transfer of the film as it was already maintained for storage and preservation at NARA. The transfer merely resulted in the Zapruder Film being categorized within a different collection within NARA than before. 43. Upon information and belief, copies of the Zapruder Film can be purchased from various individuals and companies including, but not limited to, the Collector's Archive in Canada. Such sales have not been sanctioned by either LMH or the Zapruder family and oftentimes contain no copyright notice. 44. Upon information and belief, despite widespread and unauthorized copying, sales and public showings, LMH has never brought a copyright infringement action to protect the copyright of the Zapruder Film. 45. On or about October 15, 1998, the United States and LMH entered into an Arbitration Agreement ("Agreement") to "provide a fair, cost-effective, non-judicial method of rendering a binding determination of the amount that the Government must pay for its August 1, 1998 taking of the private property of LMH...." The Agreement identifies the private property as the Zapruder Film, but not the copyright, and indicates the Film was reviewed by the Warren Commission and is currently stored at NARA. Furthermore, the Agreement states that "[n]othing in this Arbitration Agreement alters LMH's right to fully enforce its Copyright." The parties further agreed that the monetary award may not exceed $30 million. 46. Upon information and belief, under the terms of the Agreement the American public would gain little, if any, benefit from the taking of the Zapruder Film. The agreement serves only to facilitate the economic benefit to the heirs of Abraham Zapruder and their attorneys. Since 1978 the Zapruder Film has been under the protection of and in the possession of NARA. Use of the Film was selectively permitted by LMH during this time. Upon further information and belief, at no time prior to 1993 did the Zapruder family or LMH seek to reclaim physical possession of the Zapruder Film, nor did they have any intention to do so until informed of the potential taking by the JFK Act. 47. Upon Information and belief, since 1963 the Zapruder Family and/or LMH has collectively earned nearly $1,000,000 as a result of Zapruder's filming of the tragic assassination of President John F. Kennedy. 48. Upon information and belief, under the terms of the Agreement LMH stands to earn upwards of an additional $30 million in exchange for the right of the United States Government to merely maintain possession of the Zapruder Film; an act NARA has performed for twenty years. Given that DOJ has agreed to allow the Zapruder Film copyright, if it even still exists, with LMH, it will maintain the ability to earn additional millions of dollars by exploiting the Zapruder Film and thereby excessively profit from the assassination of President Kennedy. 49. Upon information and belief, LMH's efforts to seek upwards of $30 million for the Zapruder Film is inconsistent with the wishes and moral judgment and values of the late Abraham Zapruder. FIRST CAUSE OF ACTION (Declaratory Judgment) 50. Plaintiffs repeat and reallege the allegations contained in paragraphs 1 through 49 above, inclusive. 51. On or about October 26, 1992, President Bush signed into law the John F. Kennedy Records Collection Act of 1992 ("JFK Act") which sought to preserve for historical and governmental purposes all records related to the assassination of President Kennedy. The Act created the President John F. Kennedy Assassination Records Collection Act at NARA and required the expeditious public transmission to NARA and public disclosure of all assassination records. 52. The Act defined the term "Assassination record" to include records that were "made available for use by, obtained by, or otherwise came into the possession of," but not limited to, the Warren Commission, the HSCA and NARA. The term "record" included, among other items, sound or video recordings. The Act further stated that when it "requires transmission of a record to the Archivist or public disclosure, it shall take precedence over any law (except section 6103 of the Internal Revenue Code), judicial decision construing such law, or common law doctrine that would otherwise prohibit such transmission or disclosure, with the exception of deeds governing access to or transfer or release of gifts and donations of records to the United States Government." 53. Upon the enactment of the JFK Act on October 26, 1992, the Zapruder Film was automatically designated an 'assassination record' thereby becoming official property of the United States Government and throwing the copyright into the public domain, if it had not been already. 54. On April 24, 1997, the ARRB announced a 'Statement of Policy and Intent with Regard to the Zapruder Film.' The ARRB re-affirmed that the Zapruder Film is an "assassination record" within the meaning of the JFK Act and directed it to be transferred on August 1, 1998 from its present location in NARA's film collection to the John F. Kennedy Assassination Records Collection maintained by NARA. Upon information and belief, this 'Statement of Policy and Intent' did not constitute a taking of the Zapruder Film but merely a re-affirmation of the taking that had occurred with the passage of the JFK Act in 1992. 55. As the Zapruder Film was not subject to a deed of gift or affected by the Internal Revenue Code, any copyright still existing in the Film in 1992 was thrown into the public domain by the enactment of the JFK Act. 56. The DOJ has no legal right or authority to modify the statutory effects or requirements of Congress as set forth in the JFK Act thereby rendering the exclusion of the copyright from the Agreement as null and void. SECOND CAUSE OF ACTION (Declaratory Judgment) 57. Plaintiffs repeat and reallege the allegations contained in paragraphs 1 through 49 above, inclusive. 58. Upon information and belief, during the 1960s, various individuals sought to sell copies of the Zapruder Film and/or its frames including, but not limited to, attorney-author Mark Lane and author Penn Jones. Upon further information and belief, Time-Life, Inc. and/or Zapruder was aware of these actions but intentionally declined to take steps to enforce their copyright. 59. On or about March 6, 1975, Geraldo Rivera publicly aired a bootleg copy of the Zapruder Film on his ABC talk show, Good Night America. Upon information and belief, ABC requested permission from Time, Inc. to show the film but was informed that the film was not available at any price. Notwithstanding Time, Inc.'s response, the Film was aired nationally by ABC. Upon further information and belief, Time, Inc. subsequently sent ABC a release allowing them to use the film free of charge. Shortly thereafter, Henry Zapruder contacted Time, Inc. and requested it to sue ABC, particularly because the Zapruder family was to receive 50% of all subsidiary monies generated by the film. When Time, Inc. refused to sue ABC, Henry Zapruder threatened to sue Time, Inc. pursuant to the provisions of the original contract. Upon further information and belief, no action was ever brought against ABC to enforce the copyright. 60. In or around 1976, Robert Groden and F. Peter Model authored a book entitled JFK: The Case for Conspiracy (New York: Manor Books), in which was contained all or part of 22 frames of the Zapruder Film. Although this book was on the best seller list for several weeks, no action was ever brought against the authors for copyright infringement. Upon information and belief, the Zapruder family and LMH Company were aware of the publication of the book. 61. Upon information and belief, copies of the Zapruder Film can be purchased from various individuals and companies including, but not limited to, the Collector's Archive in Canada. Such sales have not been sanctioned by the LMH Company or the Zapruder family and oftentimes contain no copyright notice. Upon further information and belief, neither the Zapruder family or LMH have brought legal action against these copyright violators. 62. The failure of Zapruder, Time, Inc. and LMH to continually enforce the copyright protection of the Zapruder Film constitutes a waiver of all available protection thereby placing the rights to the Film into the public domain. THIRD CAUSE OF ACTION (Declaratory Judgment) 63. Plaintiffs repeat and reallege the allegations contained in paragraphs 1 through 49 above, inclusive. 64. On or about October 26, 1992, President Bush signed into law the John F. Kennedy Records Collection Act of 1992 ("JFK Act") which sought to preserve for historical and governmental purposes all records related to the assassination of President Kennedy. The Act created the President John F. Kennedy Assassination Records Collection Act at NARA and required the expeditious public transmission to NARA and public disclosure of all assassination records. 65. The Act defined the term "Assassination record" to include records that were "made available for use by, obtained by, or otherwise came into the possession of," but not limited to, the Warren Commission, the HSCA and NARA. The term "record" included, among other items, sound or video recordings. The Act further stated that when it "requires transmission of a record to the Archivist or public disclosure, it shall take precedence over any law (except section 6103 of the Internal Revenue Code), judicial decision construing such law, or common law doctrine that would otherwise prohibit such transmission or disclosure, with the exception of deeds governing access to or transfer or release of gifts and donations of records to the United States Government." 66. Upon the enactment of the JFK Act on October 26, 1992, the Zapruder Film was automatically designated an 'assassination record' thereby becoming official property of the United States Government and throwing the copyright into the public domain, if it had not been already. 67. The statute of limitations to bring an action against the United States Government for the condemnation (or taking) of private property is six years. 68. As the taking of the Zapruder Film occurred on or about October 26, 1992, and no civil action was ever filed by LMH and/or the Zapruder family, the statute of limitations expired on or about October 26, 1998. Therefore, the United States Government is under no lawful obligation to compensate LMH and/or the Zapruder family for the taking of the Zapruder Film. 69. That the DOJ and LMH erroneously concluded as a matter of law and/or fact that the taking of the Zapruder Film occurred on August 1, 1998 as indicated in the Arbitration Agreement does not affect the explicit statutory language and legal effect as established by Congress in the JFK Act. FOURTH CAUSE OF ACTION (Copyright Act) 70. Plaintiffs repeat and reallege the allegations contained in paragraphs 1 through 49 above, inclusive. 71. Even if the Zapruder Film remains protected by copyright, the use of the Zapruder Film by Passage in its forthcoming documentary constitutes "fair use" under the Copyright Act of 1976. 72. Even if the Zapruder Film remains protected by copyright, the use of the Zapruder Film by the AARC to educate its members and the public on the Kennedy assassination constitutes "fair use" under the Copyright Act of 1976. FIFTH CAUSE OF ACTION (Administrative Procedure Act) 73. Plaintiffs repeat and reallege the allegations contained in paragraphs 1 through 49 above, inclusive. 74. On or about October 15, 1998, the United States and LMH entered into an Arbitration Agreement ("Agreement") to "provide a fair, cost-effective, non-judicial method of rendering a binding determination of the amount that the Government must pay for its August 1, 1998 taking of the private property of LMH...." The Agreement identifies the private property as the Zapruder Film, but not the copyright, and indicates the Film was reviewed by the Warren Commission and is currently stored at NARA. Furthermore, the Agreement states that "[n]othing in this Arbitration Agreement alters LMH's right to fully enforce its Copyright." The parties further agreed that the monetary award may not exceed $30 million. 75. The DOJ arbitrarily and capriciously contravened the authority of the Congress and the JFK Act and the wishes of the ARRB by excluding the copyright of the Zapruder Film in the arbitration agreement with LMH. 76. The DOJ had no legal right or authority to modify the statutory effects or requirements of Congress as set forth in the JFK Act. Thus, the DOJ had no lawful right to exclude the copyright from the arbitration proceedings. 77. The DOJ, its officers and employees, committed and undertook actions that were arbitrary, capricious and/or an abuse of discretion pertaining to the compensation to be offered to LMH for the taking of the Zapruder Film including, but not limited to, not determining that the copyright to the Zapruder Film was already in the public domain, excluding the copyright to the Zapruder Film from the Agreement, excluding the general public from the proceedings and abusing its authority to modify a statutory act of Congress, arriving at improper decisions that were unwarranted by the facts, unsupported by substantial evidence, in violation of internal regulations and federal statutes, contrary to constitutional right, power, privilege, or immunity, or in excess of statutory jurisdiction, authority, or limitations, or short of statutory right thereby causing the AARC, Passage and the American taxpaying public to suffer legal wrongs under the Administrative Procedures Act. SIXTH CAUSE OF ACTION (First Amendment) 78. Plaintiffs repeat and reallege the allegations contained in paragraphs 1 through 49 above, inclusive. 79. NARA has in the past refused to copy the original Zapruder Film without the authorization of LMH because it erroneously believed that doing so would violate the Copyright Act of 1976. 80. Upon information and belief, as the Agreement purports to permit LMH to retain the copyright to the Zapruder Film, NARA may continue to refuse to copy the Zapruder Film without the authorization of LMH. 81. Insofar as it precludes the AARC and/or Passage from gaining access to and disseminating a first generation copy of the Zapruder Film, such action constitutes a violation of the First Amendment rights of AARC and/or Passage. 82. Furthermore, insofar as LMH may have a valid copyright in the original Zapruder Film, that right is in conflict with and violates the First Amendment. SEVENTH CAUSE OF ACTION (Fifth Amendment) 83. Plaintiffs repeat and reallege the allegations contained in paragraphs 1 through 49 above, inclusive. 84. The NARA treated the AARC, Passage, and the general American public differently and more harshly than other individuals who seek copies of photographs, videos or films currently in its possession and control. 85. Upon information and belief, before complying with a lawful FOIA request for copies of the Zapruder Film, NARA must consult with LMH or its attorneys in order to receive authorization to permit copying of a film within the possession and control of NARA. 86. LMH charges excessive fees for the use of the Zapruder Film in an arbitrary and, were it pure governmental action, unconstitutional manner. 87. NARA has acted as an agent of and in close cooperation with LMH thus making actions and decisions involving copying of the Zapruder Film a constitutional issue. EIGHTH CAUSE OF ACTION (FOIA) 88. Plaintiffs repeat and reallege the allegations contained in paragraphs 1 through 49 above, inclusive. 89. On October 22, 1998, the AARC submitted a FOIA request on behalf of itself and Passage to NARA for the following records: (1) "A copy of the Zapruder film said to be the original of the film taken by Abraham Zapruder in Dealey Plaza on November 22, 1963'; (2) All correspondence, memoranda, notes, reports, or other records pertaining to the Zapruder film, including but not limited to: (a) any agreement, including all drafts thereof, regarding the terms under which the Zapruder film has been and is stored at the National Archives; (b) all records regarding the cost of storing and preserving the Zapruder film at the National Archives; (c) all correspondence, notes, reports, memoranda or other records pertaining to Abraham Zapruder, Henry Zapruder, the LMH Company, James Silverberg, and Time-Life, Inc. which concern the Zapruder film in any way.; (3) All reports, memoranda, notes, correspondence or other written records regarding any legal question regarding the Zapruder film, including but not limited to: (a) any issue arising under the Copyright Act or common law copyright; (b) any issue arising under the JFK Act; (c) any issue arising under the FOIA." 90. No written responses have been received from NARA. 91. NARA has failed to comply with the requisite statutory periods which govern compliance under FOIA. Therefore, NARA has wrongfully withheld documents from the AARC and Passage. 92. The AARC and Passage has exhausted administrative remedies. 93. The AARC and Passage have a legal right under the FOIA to obtain the information they seek, and there is no legal basis for the denial by NARA of said right. WHEREFORE, plaintiffs AARC and Passage requests that the Court award them the following relief: (1) Declare that the Zapruder Film was taken on or about October 26, 1992 by the United States Government and its copyright, if it still existed, placed into the public domain with the enactment of the President John F. Kennedy Records Collection Act of 1992; (2) Declare that the United States Congress and/or the Assassination Records Review Board intended for the United States Government to take the Zapruder Film, and to place its copyright into the public domain, if it still existed; (3) Declare that the copyright owners of the Zapruder Film acted in ways to misuse the copyright in the Film between 1963 and the present thereby injecting the copyright into the public domain, the exact date of which is to be determined; (4) Declare that the six year statute of limitations for a civil action to have been brought by LMH and/or the Zapruder family to recover compensation for the United States Government condemnation of the Zapruder Film expired on or about October 26, 1998, and that the United States Government is thereby relieved of any lawful obligation to compensate LMH and/or the Zapruder family; (5) Declare/find that the DOJ violated the Administrative Procedures Act; (6) Award appropriate damages under the Administrative Procedures Act, the exact amount of which is to be determined at trial; (7) Declare/find that the DOJ and/or NARA violated the First Amendment; (8) Declare/find that the DOJ and/or NARA violated the Fifth Amendment; (9) Award appropriate damages under the First Amendment, the exact amount of which is to be determined at trial; (10) Award appropriate damages under the Fifth Amendment, the exact amount of which is to be determined at trial; (11) Order the NARA to disclose to the AARC and Passage those documents and films requested under FOIA that were unlawfully withheld; (12) Award the AARC and Passage the costs of the action and reasonable attorney fees under 5 U.S.C. 552 (a)(4)(E); (13) Grant such other relief as the Court may deem just and proper. Date: November 23, 1998 Respectfully submitted, _________________________ Mark S. Zaid, P.C. D.C. Bar No. 440532 1501 M Street, N.W. Suite 1175 Washington, D.C. 20005 (202) 785-3801 Attorney for Plaintiffs Assassination Archives and Research Center and Passage Productions, L.L.P. _________________________ James H. Lesar, Esq. D.C. Bar No. 114413 918 F Street, N.W., Suite 605 Washington, D.C. 20008 (202) 391-1921 Attorney for Plaintiff Passage Productions, L.L.P. _________________________ Charles J. Sanders, Esq. D.C. Bar #394793 29 Kings Grant Way Briarcliff Manor, New York 10510 (914) 366-6642 Of Counsel
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