The arbitration hearing for the Zapruder film took place on May 25–26, 1999, in the Howard T. Markey National Courts Building. The court is located in the very heart of presidential Washington, overlooking the expansive Lafayette Square and with a view of the White House. Across the park sit historic Blair House and Decatur House. The court is kitty-corner to the end of Sixteenth Street, from where one can easily see the elegant Hay-Adams Hotel and the pale yellow and white St. John’s Episcopal Church, with its gleaming gold bell tower, where every sitting president since James Madison has gone to pray. It seemed both strange and fitting that this final public question about the Zapruder film would be debated here. Abraham Zapruder’s home movie had traveled a very long way indeed.
I remember watching Bob Bennett, Dana Freyer, Rich Brusca, and Harold Reeves file in, loaded down with binders, notebooks, and materials. They looked serious. My parents, Aunt Myrna, and my cousin Adam were there for both days of the hearing. Myrna’s eldest son, Jeffrey, was there for one day, as were my brother Matthew and I. The government lawyers were Leslie Batchelor and Kirk Manhardt. The arbitrators, an esteemed group by any measure, sat at the front of the room. LMH had asked well-known attorney and mediator Kenneth Feinberg to be our arbitrator. The government had chosen Walter Dellinger, former solicitor general of the United States. Together, Feinberg and Dellinger had asked retired federal judge Arlin Adams, who had been chief judge of the Third Circuit Court of Appeals in Philadelphia. The matter before them was clear but exceedingly difficult to resolve: What is the fair market value of the camera original of the Zapruder film?
Each side faced its own particular challenges. In terms of argument, the government had the bigger uphill climb. It was their attorneys’ job to make a case for the lowest possible value for the film, which was difficult to do not only on the basis of pure common sense but also because there was an element of hypocrisy in it. As Bob Bennett repeatedly argued during the hearing, when the government wanted to take the film, they argued that it was an icon, a relic, a unique, essential artifact that had to be in the National Archives in perpetuity. But when it came time to pay for it, they focused on all the ways in which its value was diminished or limited either by its intrinsic characteristics or market forces. Meanwhile, LMH had an easier case to make since there was little question that extremely wealthy (and perhaps slightly unhinged) collectors of various stripes would be willing to spend excessive amounts of money to own the original Zapruder film. Still, if the intellectual argument was more evident, in this last moment the film exacted its final emotional toll from my father in irony. The price for being free of the film was having had to focus on it for the better part of a decade. Likewise, the price for receiving just compensation was to argue for its highest financial value, which was the very thing he had always despised.
In the seven months between the signing of the arbitration agreement and the hearing, both sides had hired experts to appraise the camera-original film and build their cases as to its value. While we were aiming for a high value and the government was aiming for a low one, both sides faced a foundational problem. Just compensation is generally established by determining fair market value—that is, what a willing buyer would pay a willing seller if neither party was under any compulsion to buy or sell. The most reliable way to find fair market value is to look at items comparable to the one in question. But, as Bob Bennett put it, “The more unique something is, the more difficult it is to find comparables from which a logical conclusion as to value can be reached. There simply were no comparable films of the assassination of presidents.”
In fact, the larger question was whether there was any object at all that was truly comparable to the Zapruder film. If not, could one establish a comparable market—films and photos, rare manuscripts, collectibles, artwork, Kennedy memorabilia, etc.—in order to approximate a value? Or should an appraiser abandon comparables altogether and try a different method instead? Disagree on these basic questions and you will disagree on value. Bob Bennett rightly assessed the arbitration hearing as a “battle of experts.” While it’s true that each side used politics and strategy, the very real disagreements in approach not only resulted in hugely disparate estimates but also presented a tough knot of problems for the arbitrators to untangle.
LMH hired four experts—Beth Gates Warren, Jerry Patterson, Steve Johnson, and Sylvia Leonard Wolf—each of whom submitted detailed appraisals of the camera-original Zapruder film. LMH also had affidavits from Joseph Barabe of McCrone Associates, who had carried out the macrographic reproduction of the original film, to testify as to the film’s quality and condition, and from Professor William Landes, an economist from the University of Chicago. The four appraisal experts had extensive experience valuing, marketing, and selling a wide variety of materials at auction, including historical objects, presidential memorabilia, photographs, and audiovisual media. The government hired C. Cameron Macauley, under the name CCM Associates, and John Staszyn to develop appraisals and testify as their experts.
Unlike the government appraisers, two of the LMH experts had held senior positions inside prestigious auction houses, such as Sotheby’s and Christie’s. While each LMH expert had prepared an independent appraisal, all shared the view that the film was an icon or a relic and that the closest possible comparables would be found by identifying the key attributes of the film and then finding other items that shared them. The experts emphasized that this is exactly the process they would have employed—and that they routinely did employ with other objects—if the Zapruder film had come up for auction. In Beth Gates Warren’s words, “It’s a process that you would have to go through… When something is rare and so unique and there’s nothing comparable to it that’s come on the market, then the best and the only fair thing to do is to look to other objects that are sold and what the real prices are that have been paid for them.” All of the experts argued that the camera-original Zapruder film should be evaluated within the context of the market for highly desirable, valuable, unique items that collectors would pay high prices to own.
In their affidavits, provided to the arbitration panel before the hearing, the appraisers identified the key characteristics of the Zapruder film that would justify the high valuations they assigned to it. While their categories were not identical, there was significant overlap. They all agreed that it was a completely unique historical document that could never be replicated, which is exactly what collectors seek and value. It was a relic of President Kennedy, described by Jerry Patterson as “inextricably associated with the final tragic moment of a beloved US president who was revered at home and abroad.” It was an “icon” of a generation’s lost innocence. It was famous, not only because of its association with President Kennedy but also because of the well-known and controversial history of the film itself. Beth Gates Warren, in particular, assessed the intrinsic value of the images as part of the film’s value, arguing that they had “artistic qualities” such as vibrant color and excellent composition and framing, as well as “powerful content” that elicits a strong response in viewers. In addition, the film’s condition was excellent and it had the best possible provenance (meaning that it was accounted for from the time of its creation until the time of the arbitration and there was no gap in the chain of possession). The appraisers repeatedly made the very important point that a collector would not be put off by the fact that the copyright was not included in the sale. Furthermore, it could be displayed in a powerful and effective manner, even though it could not be run through a projector. They also argued that collectors are accustomed to, and take seriously, their role as stewards of precious objects, and that the type of collector who would pay for the Zapruder film would not be deterred by the fact that it needed to be carefully preserved and exhibited. Finally, several of the appraisers focused on “breadth of appeal” as an important factor, describing the kind of individuals, institutions, or consortia that might wish to bid on the Zapruder film.
The first day of the
arbitration hearing was devoted to two of the LMH witnesses, Beth Gates Warren and Jerry Patterson. Warren spoke to the process of appraising the film if it were to be put up at auction, and Patterson was called primarily to critique the government’s approach. At the hearing, Rich Brusca set the tone by playing the Zapruder film for the panel, reminding them of its emotional power and iconic status. He then called Beth Gates Warren as the first expert. After she gave her qualifications and outlined her experience, Brusca asked her to explain in depth her method for valuing the film. She focused on five qualities that were of paramount importance in assessing its value: historical significance, iconographic importance, fame, breadth of appeal, and uniqueness. She then identified objects that had recently sold at auction that shared these characteristics, including unique or rare furniture such as the so-called Badminton Cabinet and a Nicholas Brown desk and bookcase; paintings by Van Gogh and Renoir; and manuscripts such as The Gospels of Henry the Lion and Leonardo da Vinci’s manuscript known as the Codex Leicester.
In a series of questions that must have driven the government attorneys around the bend, she then compared these objects to the Zapruder film. She unflinchingly gave the Zapruder film a “10” in every category, while Leonardo, Van Gogh, and Renoir got mostly 8s and 9s, with the occasional 7 and even a 4. I dearly wish I had caught my father’s eye at that moment in the hearing; I can perfectly imagine the grimace he would have given me. While Warren’s argument was well reasoned and based on decades of experience, her conclusions did seem startling, especially in light of the extraordinary objects she was citing as comparables. After all, Leonardo da Vinci was a creative, intellectual, and visionary genius, among the greatest masters of art and science the world has ever known. His codex includes his thoughts on astronomy, fossils, erosion, the properties of water, and the moon, some of which correctly predicted the scientific findings of later centuries. Van Gogh was an exceptionally gifted painter whose radical, pioneering work changed the course of the visual arts in the twentieth century and beyond. These works reflect the pinnacle of human achievement. Meanwhile, the Zapruder film is a home movie that accidentally captured the horrific murder of a young, beloved president. It reflects existential frailty and the depth of human depravity. But here it’s useful to remember that the purpose of the valuation was not to render subjective judgment on the film’s content but to see it through the eyes of a collector, whose decisions about what to purchase may or may not have anything to do with conventional notions of beauty, genius, or achievement.
Warren then established the market range by looking at the real prices paid for these other objects. They had sold in the range of $26–80 million. Being conservative, Warren placed the value of the film at $25 million—meaning that this was the starting price from which the bidding would begin. Given the intensity of interest that would likely be generated by the sale of the original film, the massive publicity that would surround it, and the wildly unpredictable nature of auctions themselves, Warren explained that the final price could easily end up at twice or even three times that number.
Warren also described the marketing tools that would typically accompany a private auction of this kind, including a “lavishly produced auction catalog” with high production values, essays by experts, images of the film, and the like. She estimated the net profits from such a catalog to be $5 million. Additionally, there was the possibility of selling limited-edition prints from the film, so-called Iris prints, made from the 4 x 5-inch transparencies McCrone Associates had created from the original film. She estimated that these could bring in an additional $10 million. All told, including the starting value of the film, the catalog, and the Iris prints, she felt that the camera-original Zapruder film had a minimum value of $40 million but that it was quite possibly worth many times more than that. In this light, LMH argued for the highest possible award allowed by the previously agreed-upon cap on the arbitration, which was $30 million.
The arbitration hearing was anything but simple. This was not just because the two parties’ approaches were different but because each attorney was making his or her case and attacking the other side at the same time, while the arbitrators were trying to ask questions of the witnesses and attorneys, all the while untangling the actual issue. But as I read through the pre-hearing briefs and the transcript, focusing especially on the second day, when the government witnesses testified, I eventually came to see the fundamentally different lens through which the government viewed the entire question of the film’s value. The government attorneys adhered to the idea that fair market value for the Zapruder film could be established only by comparing it to like objects—in this case, camera-original films. They utterly rejected the LMH approach of comparing the Zapruder film to collectibles such as works of art, furniture, or manuscripts, because—essentially—it was not made of the same material. By finding other camera-original films, and seeing how or whether they had sold, they would determine whether there was a market and what value might be established. If there was no proven market for camera-original films, they would propose alternative methods to arrive at a fair market valuation.
In the government’s pre-hearing brief, the writers began with a description of the film’s characteristics, to show how its value would be reduced by its detriments. It is, we are told, “small”—each frame being only one-eighth of an inch long and the whole film being only six feet—and has a running time of just twenty-six seconds. They pointed out that the film is spliced in two places and several frames are missing, and that the film has slightly shrunk over time. The implication was that the original film was, first of all, not much to look at and, second, not in pristine condition.
They turned next to the iconic status of the film, arguing that its fame was, in fact, attributable only to the copyright and not the actual camera-original film itself. After all, they write, “Our familiarity with the Zapruder film derives from our viewing of copies of the film, not the camera original.” Their argument hinged on the idea that since people’s familiarity with the images on the film does not come from looking at the original spool of film in the Archives (the camera original) but from the images disseminated on copies of it, it is not the camera original but the right to reproduce the image (the copyright) that has the value.
Finally, the government appraisers assessed the content of the film’s images. Unlike Beth Gates Warren, who acknowledged the film’s power to move viewers by its images, they described the film’s images as follows: “First, they are horrifying. Any attempt to deny this fact by describing the images as ‘strangely beautiful and hauntingly compelling’ simply casts doubt upon the utterer’s judgment and credibility. No appraiser in this case has disputed that tragedy and ugliness depress value.” They conclude by arguing that the film’s value is further lowered by the fact that it does not conclusively solve the murder of the president. “Far from being a source of mystery that enhances value, this inability to provide answers is an inherent limiting characteristic.”
All of these points were taken on and argued point for point by Jerry Patterson in his rebuttal affidavit and in direct examination by Dana Freyer on the afternoon of the first day of the hearing. In the end, the government concluded, “the camera original is a very small tragic historic film that, despite its limitations, is a collectible object.”
So in what market might this small, depressing, inconclusive, limited spool of celluloid be sold? Government attorney Kirk Manhardt called on Macauley to discuss this matter on the morning of the second day of the hearings. Rejecting the idea that the collectibles market was the appropriate place to situate it, he argued instead that the only true comparables are camera-original films, which have the same physical attributes as the Zapruder film. To me, this is where the government’s argument just breaks down under the weight of common sense. It’s true that the film is like camera-original films. But it’s also true that it’s like valuable collectible objects. Can’t it exist in more than one market? Which is the most
sensible? Isn’t it possible that just because of all the inexplicable, complicated, coincidental aspects of the Zapruder film that its “collectibleness” is more pronounced than its “camera-filmness”? No, not according to Macauley, or John Staszyn, or the government attorneys.
Macauley sought high and low for camera-original films and the equivalent of original prints to try to establish a market in which the Zapruder film could be situated. The crown jewel of comparables was the 1934 filmed assassination of King Alexander of Yugoslavia. After all, it’s a film, he was a head of state, and it was an assassination. So it’s exactly like the Zapruder film. But no one wanted to buy that one. He cited other murders on film of prominent figures and national leaders, and mentioned historically significant events captured on film, such as the bombing of Pearl Harbor and the explosion of the Hindenburg, as well as iconic images from the sixties. No one was interested in buying those, either. As the attorneys explained in their brief, “Many of these are no less a witness to the events they capture than the Zapruder film. The events captured on these images are no less jarring to the public consciousness. Yet there is no record of sale.”
It’s an interesting point. There was, it seemed, no proven market for camera-original films. And that would make it hard to value the Zapruder film if that was, in fact, the only way you could look at it. But the more I thought about it, the more it seemed that the government was just making LMH’s case. The fact that there was no market for camera-original films and the Zapruder film is a camera-original film does not mean there is no market for the Zapruder film. Because there obviously was a market for the Zapruder film. So there must be some other way to value it aside from merely characterizing it as a spool of film on a plastic reel. Most films and photos derive their value from the images themselves, a point that the government repeatedly made. This is absolutely true. But, for some reason, that was not the case here. The question is, Why is the Zapruder film different from these others? I’m not sure anyone really knows. And that is, ultimately, kind of the point.
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