Testimony of Jim Lesar

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 



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 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 



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 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 



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 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 



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 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 



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 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 



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 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 



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 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 



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 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.  



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 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, 



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 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 



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 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 



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 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 



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 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 



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 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.