Testimony of Jim Lesar

Before the Assassination Records Review Board - 4/2/97
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.


22 MR. LESAR: Thank you, it is a pleasure to be


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


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


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


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


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


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


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


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.


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,


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


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 thoufht it was important to preserve


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


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


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.

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