Testimony of Jeremy Gunn

Before the Assassination Record Review Board -- April 2, 1997

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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