For the editors of LIFE, Thompson and Geis had crossed it. On December 1, 1967, Time Inc. sued Bernard Geis for copyright infringement and for engaging in unfair trade and competition practices. While Geis was spoiling for a fight, Random House, which was distributing the book, wasn’t so sure. As Thompson later remembered it, smiling, “[They] got cold feet and [were] not going to let any books leave their warehouse. Geis then threatened suit against them for breach of contract and actually hired trucks to go to the Random House warehouse to get the books out.” Random House eventually relented and distributed the book as planned. And by going on the offensive to defend their copyright, LIFE continued to come out badly. In mid-December, Thompson went on The Mike Douglas Show on the ABC network to make his case not only for a conspiracy in the murder of President Kennedy but also against LIFE magazine’s ownership of the Zapruder film. At a certain point in the broadcast, Thompson urges viewers to act: “I think the first thing that has to be done—and I would invite all your help in this enterprise—is to get LIFE magazine to release this film that they’ve had in their possession for four years. It should never have been in any private person’s possession anyhow. Release that film and let the American people judge as to whether what I say is the case.”
Even I, who have a lot of sympathy for Josiah Thompson in this situation, think he went a little far here. The film should never have been in any private person’s possession? It was made by a private person. To dismiss that foundational fact of the Zapruder film is to pretend that it sprang to life in some collective way that made it by definition the property of the nation. Its status over time might change, and perhaps it should eventually belong to America as a whole, but it did not begin its life that way—so who was to say exactly when and how that transition should happen?
Further, those who called for the film’s release to the American people never seemed to bother with any of the practical consequences of such a decision. Release it to whom? The federal government? That didn’t seem like a good idea, given the mistrust of the government that came about as a result of the Warren Report. So who would administrate it? There would need to be a physical place for people to screen it and a mechanism for obtaining copies, including charging fees. Who should govern access to it and on what terms? There would be innumerable requests for its use, not just from reputable researchers but from people wanting to use it in advertising, or to exploit its shock value, or for any number of other unscrupulous reasons. Who would decide when and how it should be used? Unlike Josiah Thompson and the others who criticized from the sidelines, those who actually dealt directly with the Zapruder film felt instinctively that it was akin to the contents of Pandora’s box. Its release into the world might be inevitable, but there was no telling what the consequences would be. For this and many other reasons, the editors and executives at LIFE were in no hurry to pull off the lid.
Thompson went on to urge the audience to write to LIFE’s managing editor, George Hunt, to request the release of certain frames of the film. At that point, Kay Stevens, cohost on the program, helpfully piped up that viewers should perhaps cancel their subscriptions. Apparently, many did, and according to the LIFE records, hundreds more letters arrived at the LIFE offices expressing displeasure at the information they gleaned from The Mike Douglas Show. LIFE’s PR battles were far from over.
In 1968, while LIFE waited for a judgment in their lawsuit against Josiah Thompson, they continued to try to find a way to bring the film to the public in a respectful way that would restore their reputation (i.e., get them out of the public-relations mess they were in), honor their agreement with Abe, reflect the place LIFE magazine occupied in America, and earn back some of the money they had spent on purchasing the film. Then, the thinking went, they would get rid of the damn thing. Dick Pollard, in a letter to Elmer Lower at ABC in February 1968, wrote:
C. D. Jackson bought the copyright to Abraham Zapruder’s Kennedy assassination film to keep it from being shown in motion. C. D. had some vague notion of impounding the film for ten or twenty years until it became “history.”
Well, it can’t work out that way. We spend too much time defending our copyright and defending ourselves against accusations that we are concealing evidence (nonsense). We’d like to make a tasteful documentary about the assassination of an American president wrapped around the Zapruder film. Assuming we could get the film on television or into theaters, we would run it a couple of times and then give it to the Library of Congress.
Is there any way ABC and LIFE could get together on such a film?
Pollard wrote to his colleagues a few days later to say that ABC seemed interested but that Lower was away and they should wait for his return before approaching any other networks. “My experience has been that ABC is anxious to work with LIFE and Time Inc. While the other two networks are uncooperative if not downright hostile.” LIFE contacted a few potential scriptwriters and consultants to do treatments, trying to find the right tone, approach, and framing for this very sensitive and difficult piece. At the same time, the editors at LIFE began to tackle the technical problems of turning the 8mm original film into a large format that could be used in a motion picture broadcast.
Moses Weitzman was working for a New Jersey film lab called Manhattan Effects when LIFE came calling. First, he accomplished the highly difficult task of converting the images on the 8mm camera-original film to 16mm, which pleased the executives at LIFE enormously. They then commissioned him to duplicate it in the still larger 35mm format. Weitzman developed a painstaking, technically complicated method to accomplish this, inventing new techniques and jerry-rigging the special equipment he needed for this purpose. His efforts yielded mixed results early in 1968. One copy had bubbles in the blowup images, so it was thrown away. Another copy was unusable because the images were incorrectly printed in the soundtrack area of the film, so Weitzman threw that one into a box in his office and began again. In May 1968, his third try was successful. He was able to deliver to LIFE magazine a 35mm print of the film, along with an internegative from which future duplicates could be made, and the camera original.
In May, LIFE had in its hands a high-quality 35mm reproduction of the Zapruder film that could be used as the centerpiece of a short documentary about the president’s death. But Martin Luther King had been assassinated in April, and then in June Bobby Kennedy was also murdered. By August, the movie discussion was completely over, at least as it appears in the LIFE records. It was clearly not the time to make a film about the assassination of an American leader, least of all a Kennedy.
Even as LIFE had its hands tied by basic decency, the legal wheels continued to turn on the Thompson case. In September 1968, more than a year after the publication of Thompson’s book Six Seconds in Dallas, New York Federal District Court judge Inzer B. Wyatt handed down a summary judgment in the case Time Inc. v. Bernard Geis Associates. There were two important parts to the case. The first part hinged on whether or not the Zapruder film could be the subject of copyright. While there was a long history of copyright law that protected both still and moving photographs, the defendants had argued that the Zapruder footage was simply a record of what occurred—with no artistic or creative elements—and that it was therefore “news” and, as such, not subject to copyright. The judge dismissed this point, not only on the basis that every photograph reflects some element of choice and design, but on the particulars of this footage, writing, “The Zapruder pictures in fact have many elements of creativity. Among other things, Zapruder selected the kind of camera (movies, not snapshots), the kind of film (color), the kind of lens (telephoto), the area in which the pictures were to be taken, the time they were to be taken, and (after testing several sites), the spot on which the camera would be operated.” He also touched, albeit briefly, on something that is central to much of the controversy around the film. After a lengthy justification of photographic copyright in any number of scenarios, including a street scene of the New York Public Library, he wrote: �
�Thus, if Zapruder had made his pictures at a point in time before the shooting, he would clearly have been entitled to copyright. On what principle can it be denied because of the tragic event it records?” Although the judge said no more here, this is indeed the core of Thompson’s claim. For many people, it was exactly the importance of the event, America’s need to understand it, the collective tragedy it recorded, and the national pain it captured that undermined LIFE’s legal claim to it. While this may satisfy an emotional argument, it does not work as a legal one.
So there was clearly a copyright to the film. The next question was whether the sketches constituted infringement. According to the judge, they did. “The so-called ‘sketches’ in the Book are in fact copies of the copyrighted film,” he wrote. “That they were done in charcoal by an ‘artist’ is of no moment.” In other words, there was no real difference between making an accurate drawing of the film’s frames or photographically reproducing them. It was looking good for LIFE. But then, there was the slippery matter of “fair use”—a provision that has been called the “most troublesome in the whole law of copyright.” To determine whether Thompson’s use of the drawings fell within the bounds of fair use, the judge had to consider several factors, including what Thompson’s purpose was in using the Zapruder pictures, how much of the whole film they used, and if Thompson’s use of it in his book took away any meaningful value from LIFE magazine.
The judge acknowledged Thompson’s bad behavior in secretly copying the film and publishing the sketches, and acknowledged that this made him reluctant to rule in his favor. However, he argued, there was no injury to LIFE, because Thompson’s book was not in direct competition with LIFE magazine and people did not buy the book to see the Zapruder images but rather to follow Josiah Thompson’s argument about the assassination, of which the images were a necessary part to illustrate his points. Most of all, he wrote, “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.” This was a nod to the public’s “right to know” and the author’s First Amendment rights of freedom of expression. He ultimately found that the sketches were within the bounds of fair use. The ruling of fair use granted the material’s replication within strict bounds, and it certainly didn’t dismantle LIFE’s proprietary right to the film. This case—deemed by many to be a landmark one—would be cited in copyright cases for decades as an example of how the fair use doctrine could be expanded to allow for copyrighted materials if it was determined that it was in the public’s interest for them to be seen.
In media accounts of the case, LIFE was said to have lost the suit. Strictly speaking, they did, in that they were not able to halt the publication and distribution of Thompson’s book with the Zapruder sketches in it. But for LIFE, that outcome was ultimately not very damaging—it probably wasn’t nearly as bad as the public smackdown they had gotten from CBS. Although LIFE had received another public black eye, the judge had, in fact, reiterated the legitimacy of the film’s copyright, which was a victory in and of itself, as their lawyer pointed out in a letter to the magazine’s editors. Still, as with everything concerning the film, even this “victory” was a mixed bag. They had the legal standing of the copyright to the film, but the judge’s ruling of fair use might gradually erode their exclusive use of it. Their public-relations problems just kept growing, and this small legal victory didn’t do a thing to alleviate them. Even more important, all the copyright protections in the world wouldn’t stand a chance against the small army of committed conspiracy theorists who were determined to get their hands on the film, bootleg it, and show it to as many people in the United States as possible.
A five-star general in this army set his sights on the Zapruder film in March 1968. This was New Orleans district attorney Jim Garrison, who had the previous year brought formal charges against a local businessman, Clay Shaw, for allegedly having conspired in New Orleans with Lee Harvey Oswald to murder President Kennedy. On the face of it, the charges were totally outrageous and elicited wide criticism from mainstream sources around the United States. Clay Shaw was a respected businessman in New Orleans who had helped found the International Trade Mart and was active in civic affairs throughout the city, especially in the restoration of buildings in the historic French Quarter. He had supported Kennedy in the election and had not so much as an outstanding parking ticket in the way of a criminal record. Nevertheless, Garrison pressed forward, armed with little more than his certainty that the president had been killed as a result of a conspiracy, and a handful of witnesses who claimed that Shaw had been present at a meeting with Oswald and David Ferrie, another local man, in which such plans had been discussed.
Garrison’s case rested on convincing a jury first, that there had been a conspiracy to kill the president, and second, that the plotting of it had taken place in New Orleans with Lee Harvey Oswald and David Ferrie (both dead) and Clay Shaw. Garrison maintained that there could be no proof of conspiracy without the Zapruder film, which he believed would convince any sane person that there had been a second shooter on the grassy knoll. On March 13, 1968, in remarks he made to his colleagues at the National District Attorneys Association convention in New Orleans, he publicly denounced LIFE magazine for withholding the film. That was nothing particularly new. But in those same remarks, he also accused LIFE of suppressing it at the direction of the federal government as part of a deliberate conspiracy to cover up the truth of the assassination. Now, that was new. For this, LIFE reporter David Chandler accused Garrison of civil contempt of court. Undaunted, two days later Garrison issued a subpoena to LIFE magazine to present the film to the grand jury in the Clay Shaw trial in New Orleans.
LIFE photo lab technician John Francis appeared in the New Orleans courthouse with a copy of the film on March 28, 1968, where it was shown to the grand jury and members of Garrison’s staff. The transcripts of those hearings disappeared in the 1970s—generally thought to have been destroyed on orders from New Orleans district attorney Harry Connick, who succeeded Garrison—and only resurfaced in 1995, and there is no record of the film viewing among the surviving records. However, Mark Lane—a close confidant of Garrison and a constant presence throughout the trial—wrote an editorial in the Midlothian Mirror that offers a perspective, though a wildly biased one, about the effect of this showing of the film on Garrison’s staff and others.
According to Lane’s editorial, LIFE provided an “excellent first generation color reprint” for the purposes of the screening, though some disagree with this characterization. But as far as the film was concerned, Lane—and Garrison, for that matter—was interested in just one aspect of it. Since they both believed that the film showed unequivocal evidence that the president was shot from the front (because the president’s head appears to snap back and leftward immediately after the explosive shot), they also believed that it proved a conspiracy. If this were so, the visual evidence on the film undermined the credibility of the Warren Report and its authors, and suggested that the government was in on a conspiracy to cover up the truth. To support his point, Lane went on to quote at length five people who viewed the film and interpreted it exactly as he did. He quoted exactly no people who interpreted the film in any other way. In case readers did not fully comprehend the significance of this landmark showing of the film, Lane made sure to spell it out. “What have we learned?” he asked. “That while LIFE is an intransigent part of the establishment and in the fact-suppressing and truth-distorting business it is, on occasion, willing to yield a step or two to maintain its image of truth seeking. And we have learned that the monster that inhabits the Time and Life Building is kind, benign, friendly, and thoroughly democratic when contrasted with your own monster who rules from Washington.”
The showing of the film to the grand jury was just the beginning. LIFE was compelled to leave the copy with Garrison for use in the trial, whose date had not yet been set, with s
trict provisions stating that it would not be shown to the media, duplicated, reproduced, distributed, or shared in any way except as required by the trial. Having agreed to these conditions, Garrison’s office took possession of the film and promptly set about breaking every single one of them. The film remained in Garrison’s possession for almost a year, but the full impact of his control over the film on LIFE magazine, their copyright, and the larger debate over the conspiracy would not be clear until well after the trial had ended.
For many who were engaged in studying, writing, and arguing about the assassination, the movement of the president’s head on the Zapruder film was obvious evidence of a shot from the front and, therefore, a conspiracy. For the most prominent dissenters to the Warren Commission—among them Mark Lane, Josiah Thompson, and Jim Garrison—it was all but an article of faith. As Mark Lane put it in Rush to Judgment, “So long as the Commission maintained that the bullet came almost directly from the rear, it implied that the laws of physics vacated in this instance, for the President did not fall forward.” In 1969, for the first time, a brilliant Berkeley physicist named Luis Alvarez put that conviction to the test.
Twenty-Six Seconds Page 19