ZAPRUDER COPYRIGHT ISSUES / Civil Suit Filed
Zapruder Film Civil Suit Filed
"Fair price" and
copyright issues challenged
Mark
Zaid, James Lesar, and Charles Sanders
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[Editor's note: On 23 November 1998, a civil suit was
filed by three attorneys on behalf of the Assassination Archives and Research Center
in Washington, D.C., and Passage Productions, which
wanted to make use of the film. Their objective was to dispute the
government's approach toward the acquisition of the film as an
"assassination record" without concurrently obtaining the
copyright, even though as much as $30,000,000 had been suggested as the
compensation price. (It would turn out to be $16,000,000.) The plaintiffs argued
that the family had abandoned its copyright through highly selective
enforcement and that it had charged excessive fees--as much as fifty times
the industry standard--for the use of Zapruder frames. The question of
copyright extends across multiple issues, including fair use and criticism,
since it can be difficult if not impossible to criticize work you cannot
cite. It was not a part of this lawsuit, but the question of authenticity
raises fascinating issues, especially if it has been altered at the hands of
government employees (or agents), since government documents are not covered
by copyright protection--not to mention the copyrightability of a film
fabricated to conceal the true causes of death of the 35th President of the
United States! The government apparently made payment before the case could
be considered, which rendered the issue moot. The National Archives currently
responds to requests for the Zapruder film in the same fashion that it does
to other requests for assassination evidence.]
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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 RecordsAdministration ("NARA") for injunctive, declaratory and monetaryrelief 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 partnershipunder 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"), aDallas 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 wasowned 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 ofthe 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") whichsought 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 attorneyfor 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 andsought 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 'Statementof 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") whichsought 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") whichsought 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