Twenty-Six Seconds

by Alexandra Zapruder

  Another hindrance was the cumbersome process by which someone obtained a copy of the film, which reflected the technical limitations of working from 8mm film before the digital age. First, a requester had to write or call Henry’s office to make a request. Then Anita would send a license agreement letter with two copies. The requester had to sign and return both of them, after which Anita would send one copy to the National Archives. The requester then had to contact James Moore, director of the Audio-Visual Division at the National Archives, who handled these requests. He would provide the requester with a copy of the film, possession of which was granted on a temporary basis. It had to be returned after a certain period of time. The process got increasingly complicated if the person wanted to keep the film, reproduce it, or the like. There were plenty of ways for a person navigating this system to hit a snag or find his or her request delayed.

  In the end, the overwhelming impression in reviewing these records is that managing the film was every bit as much of a pain in the ass as LIFE magazine had anticipated it would be. It was time-consuming and tiresome, requiring decisions, correspondence, and differing kinds of license agreements and arrangements. As Anita put it, “It was a major thing and they [the law firm] didn’t want me to work on it during the office hours. So I would do it [at other times]… and it was interesting. Sometimes, it was difficult because people would call and this was their life. They had conspiracy theories and they would want to talk to me about it. And it was hard to interrupt them, but you know, I’m thinking, ‘You don’t know how much work we have and I really need to get back to work.’” Against the backdrop of the usual steady stream of requests, on major anniversaries of the assassination they would be besieged by requests from all the major networks, all urgently wanting the film.

  Under these circumstances, I can see how someone might ask why my father didn’t turn the management of the film over to a professional better equipped to handle it. He was well aware that the permissions weren’t always managed smoothly and that outsourcing the work would be easier for him, easier for Anita, and better for the many hundreds of people who wanted the film for legitimate and reasonable uses. But, in the end, he always pulled back from this course of action, in part—I’m sure—because he could not escape the sense of personal responsibility for the film. For while it was becoming a more and more important historical record, it also remained a home movie, and he believed that our guardianship of the film should take into consideration his father’s wishes as well as our family’s values and our respect for the Kennedys. These were not abstract, distant concepts; they lived inside my father’s head and heart, and it would not have been easy—even with a policy in place—for him to entrust the film to anyone else to make the decisions that he could instinctively make himself.

  As a possible alternative solution, my father periodically tried to find someone in the family who could take on the responsibility for managing the film. In February of 1988, he wrote a letter to my uncle Ernie, my aunt Myrna’s second husband, asking him if he might be willing to handle it, especially in view of the upcoming twenty-fifth anniversary of the assassination, at which time he and Anita would surely be deluged with requests. In the letter, he explained the policy regarding the film: to grant free access for nonprofit use by researchers, teachers, and students and to charge for commercial use under limited licenses. At this time, the broadest and most flexible use—with no geographic, media, or time limitations—could cost as much as $30,000. “When one begins slicing off uses or areas, the price declines,” he wrote. “It is all a matter of judgment and we attempt to be somewhat consistent with past practices and to be fair.” He acknowledged that it might help everyone if someone else could deal with the film. “The requests we receive invariably are assigned low priority in light of the other demands upon Anita and me. More responsive treatment of the inquiries together with more care and attention to the needs of the potential licensees will probably benefit all.”

  He continued his letter with what is probably the most direct acknowledgment of the problems the film caused:

  I am reluctant to conclude a discussion of the commercial aspects of the film without a reference to what I am sure has already occurred to you—a somewhat public responsibility with respect to this private property. I want to assure you that I have always had a free hand in exercising the judgments necessary to avoid foreclosing anyone who has a legitimate interest in the assassination from examining or borrowing copies of the film or frames. Our policy reflects that decision by charging only where licensees intend themselves to benefit economically from exploitation. Sometimes judgments are required to further the interest of easy access by legitimate researchers… I am sure you would want to do the same and want to reassure you that I am in favor of that approach.

  I do not have a response in the file from Ernie, so I’m not sure if my father decided against sending this letter or if he did and they discussed it by phone. In any case, Ernie didn’t take on the work at that time. Just over a year later, he would die of a sudden heart attack, leaving my aunt Myrna heartbroken and widowed for a second time (her husband Myron had died of cancer at just forty-six, when their four boys were still quite young). It was a shocking and terrible loss for his children, my cousins, and the whole family, who had quickly come to love and appreciate him as much as my father clearly did.

  Just months after Henry wrote the letter to Ernie, he and Anita found themselves in the middle of a flap with two very angry and frustrated researchers. In April 1985, nearly three and a half years before, they had received a request from Gerard “Chip” Selby, a master’s candidate in the Department of Communication Arts and Theatre at the University of Maryland, who wanted to use the film in a documentary for his master’s thesis. He assured Henry that its use was for educational purposes only, and that if he decided later to show the film in public or for profit, he would secure a separate permission. In September, he wrote again, having changed his address, urgently asking for an answer. He apparently did not get a reply. In March 1988, he finished his documentary, wherein he used the film without permission, having failed to get authorization from LMH. When he began to receive interest from various networks interested in airing the documentary, he inquired again, this time about fees and permissions for commercial release. According to Selby, he had enormous difficulty reaching Henry and Anita, and when he did, they quoted $30,000—the top of the range as described to Ernie—which was not feasible for him. Henry apparently assured him that he did not want to “close down his project” and that they would “work something out.”

  At the same time, Harold Weisberg, the early critic of the Warren Commission, was also trying to get access to the film, particularly to make copies from the original that showed the “inter-sprocket material”—that is, the bit of film between the sprocket holes that was not reproduced in many of the copies. He also was having trouble getting an answer from Henry. Selby and Weisberg decided to join forces to try to move their grievances with LMH forward.

  There is no question that by the summer of 1988, Selby in particular was very frustrated. Anita wrote a memo at the time describing an angry call from him in which, she reported, he was verbally abusive. Selby recalls the call differently, relating how he laid a verbal trap for her, getting her to say that LMH had sued people for copyright infringement when he knew they hadn’t. He describes Anita as insensitive and uncaring. Whatever exactly transpired, the conversation did not go well. Meanwhile, in periodic letters, Harold Weisberg was continuing to express his aggravation with the delays in the process. On one of Weisberg’s letters in the file, to which they had not yet responded, Henry wrote a note to Anita: “Write: sorry. Truly busy. Will try to attend to this when I return.” Whereas Anita had a fiery personality, Henry was even-tempered and usually quick to apologize, even if he was not entirely in the wrong.

  However, Selby and Weisberg would not be appeased by mea culpas. They quickly turned their logistical problem of getting access
to the film into a much larger attack on LMH’s ownership of it. Selby spoke with journalist Jerry Urban from the Houston Chronicle, who wrote a splashy article about the “price tag” for using the Zapruder film.

  The family of the man who made the most famous home movie in history is selling the Zapruder film for as much as $30,000 per use nearly 25 years after it captured the assassination of John F Kennedy.

  While the footage is under copyright protection, some believe profiteering from the historical film made by Abraham Zapruder Nov. 22, 1963, is wrong and that the home movie should be in the public domain.

  Henry would be the first to agree that “profiteering” from the film would be wrong, but it does not follow that the film should be in the public domain and that there were no grounds for managing its use. In the article, Urban interviewed David Wrone, author of The Zapruder Film (2003), in which he would devote an entire chapter to this unfortunate episode and casually slander my father in the process. In the interview with Urban, Wrone declared: “You shouldn’t be able to copyright something like that. It should be in the public domain, just like the crucifixion of Jesus. It’s immoral, socially speaking.”

  There are so many troubling things about this quote that it’s difficult to know where to start. But let’s begin with this: The crucifixion of Jesus is an event, like the murder of Julius Caesar or the signing of the Declaration of Independence or the moon landing. No one was copyrighting the Kennedy assassination. It could be written about, represented, and portrayed in any number of ways. And although they are deeply conflated in the public mind, the Zapruder film is not actually the same thing as the Kennedy assassination. One is the thing that happened and the other is a single representation of that thing from a very specific vantage point made by an individual person with a certain kind of camera, a certain kind of film, and so on. Which is exactly why there is a copyright to it.

  It was a problem that plagued the film. For many, “something like that,” to use Wrone’s words, seemed to exist outside legal norms. But what are those “somethings” exactly? Important things? Things that people care about? Things that people want? Should the mere fact that the images are historically important, or in demand, or subject to much debate, or even that people have a strong emotional or intellectual attachment to them be enough of a reason to dismantle the protections that our society guarantees for private property? It is interesting to think for a moment about what else would be summarily moved into the public domain under that argument. Besides, the question is not as black and white as Wrone would make it seem. Our society has protected the public interest by creating the “fair use” doctrine, which allows for a certain portion of copyrighted works to be used without permission. The Bernard Geis case many years before had asserted Josiah Thompson’s right to use frames of the film exactly for that reason.

  Jerry Urban interviewed plenty of others who were happy to pile on. A network executive who declined to be named shared a helpful rumor: “What I hear is that there is a kind of rate card… They (network negotiators) are saying, ‘Well, they’re trying to stick us as high as they can go. They have a different rate if you are local public broadcasting, or if you’re a local Houston station—a different rate for this and that.’” And Robert Groden, who is described as finding Henry’s handling of the film “questionable,” chimed in with what seems to me to be a rather tired theme at this point: “The worst part of the whole thing has been the suppression of the film. Not so much that one person is making a lot of money, but if somebody really wants to do something really good with it, they’re restricted. It’s like their hands are tied.” To describe the film as being suppressed in 1988 is just silly. Henry wasn’t restricting Selby because he didn’t want him to make his documentary, or prohibiting Harold Weisberg access to the film because he didn’t want him to see what was between the sprocket holes. He had made the film available to thousands of people, institutions, network programs, and others by that time. He was a busy tax attorney with a demanding practice, a big social life, a lot of professional and community responsibilities, a mother whose health was failing, and in-laws who weren’t doing too much better, not to mention a wife and three children. He was overworked and overwhelmed. He was human. He was doing the best he could. So sue him.

  Which is exactly what they did. Weisberg and Selby engaged attorney James Lesar and filed suit against Henry and the LMH Company, seeking “injunctive relief and declaratory judgment” in the matter, and also used the opportunity—nominally at least—to try to dismantle the copyright protection in the film. They did this by focusing on a narrow aspect of the law, arguing that LMH’s failure to prosecute similar violations over the years was tantamount to abandonment of copyright. To clarify, LMH was, in their argument, guilty of aggressively controlling the copyright—by allowing certain uses and charging for the film—but also guilty of not pursuing aggressively enough those who failed to gain legal permission to use it. Their attorney, James Lesar, added this to their complaint: “At issue in this case is whether one man acting for the alleged copyright owner of perhaps the most vital piece of documentary evidence in the history of the United States is to be allowed to use the Copyright Act to dictate what ideas and information the public may receive concerning the President’s assassination and what evidence scholars and researchers may study.”

  In an instant, Henry Zapruder went from being the harassed, busy lawyer trying his best and occasionally failing to effectively manage public access to the Zapruder film to the Joseph Stalin of the Kennedy assassination, sitting in the lofty heights of his corner office on K Street, dictating who could and could not study the material evidence (as if the Zapruder film incorporated the sum total of it all) and thus the very “ideas and information the public may receive” on the subject. I can understand my father’s disbelief when presented with the suit. First of all, he had spent countless hours in the previous thirteen years making the film available to the vast majority of people and institutions that asked. Second, he barely thought about who killed President Kennedy: The topic was among the least interesting to him in a life defined by intense curiosity about nearly everything he encountered. For him, the death of the president had been a devastating personal and national blow, but the damage was done and the wounds sustained. Who, how, exactly when, in what way, from which direction, under what circumstances, even how many—these were simply not questions he felt the need to ask. If anything, he was somewhat baffled by people’s interest in the film and the details of the assassination. But he had no vested interest in thwarting it, much less in trying to influence public dialogue on the subject through control of the film.

  Still, the suit had been filed and it needed to be dealt with. This is when Jamie Silverberg, an intellectual property lawyer, came into the picture. He would go on to represent our family and the film for nearly a decade. Within weeks, the case was settled out of court. Why? Because it was never Henry’s intention to prevent either Selby or Weisberg from getting access to the film. Selby and Weisberg, on the other hand, had not merely sued for permission to use the film but, under the mantle of a principled objection to individual ownership of the film, had tried to challenge the copyright itself. The instant they got the permissions they wanted, however, they abandoned their claim. The terms of the settlement remained confidential and the public language ran as follows: “The matter has been amicably resolved. It has been resolved in a manner that respects the copyright in the Zapruder film. The license granted is consistent with the Licensor’s policies for commercial and noncommercial use.”

  In thinking about this controversy and later ones that erupted over our family’s handling of the film, I keep coming back to my father’s letter to Ernie. He had explained the policy, but he had also said something else. Managing the film required judgment. And herein lies both the strength of the arrangement and also the source of many objections to it.

  The film had been made by our grandfather, sold to LIFE, and returned to our family
. Like it or not, there was a copyright in the film and LMH was responsible for it. It is certainly easy to criticize my father’s actions, but it’s also worthwhile to consider the universe of possible ways in which a copyright holder could act. There was, after all, no precedent; there were no rules or limitations externally imposed on him. At the Extremely Controlling end of the spectrum, he could have been far more restrictive: He could have refused to allow any uses at all, or he could have acted as a censor, making decisions about who could use it strictly on the basis of what he believed had actually happened, or some other completely arbitrary rule. He could have been inconsistent or capricious, deciding each case on an ad hoc basis or ignoring his own precedents when considering new requests. On the Totally Irresponsible end, he could have abdicated any sense of personal obligation for the film’s content and turned it over to a profit-based agency that would market it, sell it, and make as much money as possible. Or he could have made it available for free to everyone who asked, no matter what they wanted to do with it, allowing images of the Zapruder film to proliferate and multiply.