Twenty-Six Seconds

by Alexandra Zapruder

  Walter Dellinger wrote a dissent because he believed “that the award of $16 million is simply too large an amount in light of the evidence in the record.” He began his opinion by acknowledging the importance of the film, writing: “The vivid images captured by the Zapruder film are eminently recognizable, perhaps more so than any film footage ever captured, and so much so that anyone who reflects on President Kennedy’s assassination quite likely does so instinctively from Abraham Zapruder’s vantage point. Indeed, when a copy of the Zapruder film was shown to the panel at the outset of our two days of hearings, I found the dramatic images far more riveting than I had recalled or imagined.” Still, Dellinger took pains to separate the images on the film, which were by then widely available, from the original reel of film. “Thus, the sole issue here is the value of the out-of-camera original film itself as an artifact.” He emphasized the government’s point that there was no proven market for camera-original films, writing that they have “little independent value.” For this reason, he was convinced that the alternative method provided by Cameron Macauley of taking the 1963 purchase price of the film and applying the Consumer Price Index to determine the value in 1998 dollars was more reliable. At the end of that calculation, he was closer to $1 million than $16 million. He took issue with several points made by his arbitrator colleagues, especially challenging the comparables provided by the LMH experts on the grounds that the “status of their artist or creator, their artistic appeal, and their sales and ownership history” had little to do with the Zapruder film. Finally, Dellinger did agree with Feinberg and Adams that the Kennedy factor was a real one and that it would increase the value of the film “at most threefold, fourfold, or even fivefold, to between $3–5 million.” It would be ample recognition, he felt, for “the value as a historical object of this strip of film.”

  Feinberg and Adams responded in their opinion to Dellinger’s points, arguing that it was “a creative argument to justify a much lower figure but that creative argument is not found in the record.” They answered several of his points, but there was one element that is, I think, the most important one. The government and their experts repeatedly stressed that the lack of a market for camera-original films was the critical factor. In his dissent, Dellinger wrote that it “speaks volumes.” To this, Feinberg and Adams wrote:

  Whatever the reason for the absence of a competitive market for historical films, we emphasize that, when it comes to the Zapruder film, it is the Government’s seizure of the film that “speaks volumes.” We know of no other situation… when the Government decided that it was in the public interest to assume control over an original historical film (or any other privately owned historical memorabilia). The participants in the arbitration, including all of the witnesses called by both sides, commented repeatedly on the unique quality of the Zapruder film, and on the fact that it was different from any other historical item previously evaluated. To attempt to reduce the value of this item by referencing the absence of a market in other film which has neither the notoriety nor indelible imprint of history on it is to advance an argument not supported by the record. Simply stated, the Zapruder film is one of a kind.

  I went to speak with Walter Dellinger toward the end of writing this book. I was curious about his thinking regarding the film’s value and what, if anything, I might learn from hearing his point of view. Dellinger is an enormously respected attorney, having served as solicitor general of the United States in the Justice Department under President Bill Clinton, and is now a senior partner at O’Melveny & Myers. He has a calm, amiable demeanor, a relaxed Southern drawl, and piercing blue eyes that don’t miss a thing. If he had been convinced by the government’s arguments, then I definitely wanted to know more.

  He recalled in our interview that he had been approached by assistant attorney general Frank Hunger, who was head of the Civil Division, about serving as their arbitrator. When I asked him why he thought they approached him specifically, he said, “I was well known to them from more than four years at the Justice Department in the Clinton administration. I had worked with the attorney general and senior officials so they knew how I handled issues and that there would not be acrimony if I was involved. They wanted to handle it in a respectful way.” Dellinger willingly agreed.

  He explained that the first and most important task that he and Ken Feinberg had to accomplish was to choose a third arbitrator. This person would, together with Feinberg and Dellinger, assess the experts’ credibility and consider the merits of the various arguments. But he would also bring his background and life experience to the question. In this regard, he said, “Ken and I both understood that it mattered whether the third arbitrator was someone who thought, say, five million dollars was a lot of money or not much money.” Dellinger remembered, with a laugh, that Ken’s first suggestion was Jack Welch, the CEO of General Electric, who, in his words, “made hundreds of millions of dollars a year and who would have thought of thirty million dollars as, like, what you leave for a tip.” Dellinger’s first suggestion, on the other hand, was his Duke colleague John Hope Franklin, whom he described as “the greatest African-American historian of the century.” He was a man who not only had a tremendous sense of history but who had always lived very modestly on the salary of an academic. Each rejected the other.

  Next, Dellinger tried to persuade Feinberg to agree to bring on Dixon Phillips, federal Court of Appeals judge from North Carolina. Dellinger, chuckling, said that Phillips “still drove his twenty-five-year-old Plymouth and had not bought a new suit in many years; he would have thought several thousand was a lavish award.” Needless to say, it was no dice. Ultimately, however, the two men agreed on Judge Arlin Adams, who not only had the intellectual qualities and discernment they needed but had also sat on the federal bench from 1969 to 1987 before going into private practice in Philadelphia. He was quiet, thoughtful, and could see both perspectives and would serve as a fair and impartial third arbitrator.

  Dellinger told me he had been very impressed by our attorneys’ description of what Abe Zapruder accomplished in taking the film. Before then, Dellinger said, he had assumed that Abe was there purely as a matter of accident or coincidence, and that nothing he had done reflected his skill or judgment. He walked away from the hearing with a very different sense of that part of the story, aware not only of the considerable care that Abe had taken to find the right spot and to use his camera skills to record the motorcade but, most of all, of what he had accomplished once the shots started to ring out. “Everybody else is screaming and running,” Dellinger explained, “and [Abe] follows that car and the motorcade; he knows to keep his focus on where the president is… The steadiness and the resolve with which he pulled it off was really extraordinary.” In Dellinger’s mind, there was a sort of athleticism to the way he kept his balance on the ledge, his focus on the president, and his nerve when pandemonium broke out around him.

  Nevertheless, as much as he admired Abe for what he did that day, it did not change his basic view of the valuation of his film. He agreed with the government experts who said that there was no market for camera-original films and that it was the images that had been disseminated from it—not the individual, original reel of film—that had the real value. “No one came up with any other strip of film,” he said, firmly tapping his finger on the desk for emphasis, “that had ever been sold. To me, that was the single most important point.” Remarking on other historic films, such as the footage of the Hindenburg explosion, he went on: “If they really had great intrinsic value, I think some of them would have been captured, would have been sold; some museum would have them and be displaying them. But no one’s ever cared about that; you care about being able to witness the Hindenburg explosion, not about the strip of film.”

  I couldn’t disagree with him, though, of course, I believe that one can view the argument in exactly the inverse way: The fact that there is no market for camera-original films, and that experts from Sotheby’s could nevertheless be so sur
e that the Zapruder film would sell for millions at auction, just proves its exceptional status. When I raised this point with Dellinger, he agreed that the argument had a certain logic, and, like everyone else, he struggled during the course of our conversation to identify what exactly it was about the film that made it defy all the models. Even so, he simply did not believe it would sell for the kind of money that our experts suggested. “I honestly think,” he said, “and this is just so utterly speculative, I can’t defend this, [but] I don’t believe the strip would have gone for more than three million dollars if it were sold.” “Really?” I said. “Even with all those experts?” “I was totally unpersuaded,” he told me.

  Beyond the question of whether there was a market for camera-original films, Dellinger’s real objection to the value that Feinberg and Adams proposed came down to the stripping away of the right to own, reproduce, and distribute its images, i.e., the copyright in the film. In fact, toward the end of our conversation, he surprised me in an entirely different way: He said that although he felt the value of the camera-original film was wildly inflated, he also felt that the rights in it were similarly underestimated. “I guess it shows the balance of the universe,” he said, half laughing. “I think the rights to the film—not the strip but the rights to the image—were greatly undervalued. Hugely undervalued. So, in fact, I think that the total compensation for the ‘package’ is way under, in my view.” If they had been asked to value both the original film and the copyright, he would have been inclined to award a much higher figure than $16 million. Of course, this is exactly why the government left the copyright out of the taking to begin with.

  To hear Ken Feinberg’s perspective on the arbitration, I had an appointment to meet him in his office at the Willard Office Building in Washington, DC, on what turned out to be a slushy, messy winter morning. In the fifteen years since the Zapruder film hearing, Ken had become a household name, having served as special master of the federal September 11th Victim Compensation Fund and administrator of both the Hokie Spirit Memorial Fund after the Virginia Tech massacre in 2007 and the Gulf Coast Claims Facility following the 2010 Deepwater Horizon oil spill. While Dellinger has an unhurried style, Feinberg is brisk and energetic; he talks quickly, with a classic Massachusetts accent that instantly endeared him to me. His office wall is covered with framed articles about his high-profile cases, letters from famous people, and photos of himself with presidents and heads of state. In spite of this, he is warm, friendly, and very down-to-earth. As soon as I walked in the door, he showed me a framed New York Times opinion piece about the Zapruder film arbitration decision hanging on his wall. It had been published on August 5, 1999, the day after the decision was made public. “Have you seen this?” he asked me. “It’s good. It’s very good. You should read it. You’ve read it? OK, good. That’s good.”

  When we sat down to talk, I asked him how he felt about arbitrating this matter and how he had approached the hearing. “I had been chief of staff to Ted Kennedy,” he said. “I had grown up in Massachusetts when his brother was president, a son of Massachusetts, and to be part of this, I felt, was an honor… Before I accepted Bob Bennett, I went and asked Senator Kennedy, and I said, ‘Senator, they’ve asked me to arbitrate this and it’s part of the law and I’m not going to do it if you have any qualms about it,’ and he thought it over and he said, ‘You know, I’m glad you’re doing it. I’m glad somebody who I know very well and who I trust… It’s history. You should do it.’ He was very supportive, actually.” He told me that Senator Kennedy had even sent him to talk to the rare-books and manuscripts collector on Seventy-Ninth and Madison who had sold a lot of Kennedy memorabilia. Feinberg told me, “So I went to see him. On my own! I said, ‘I’m doing this arbitration,’ and he said, ‘Boy, it’s one thing to value what a Kennedy letter is worth or a president’s autograph… This?’ Wasn’t helpful. Wasn’t helpful.”

  Unlike Dellinger, who agreed with the government experts that the camera original did not have intrinsic value, especially without the copyright, Feinberg was convinced by the LMH experts who argued that the film had tremendous financial worth—regardless of the existence of a market for camera-original films and quite apart from the copyright. For Feinberg, the biggest flaw in the government’s case was that their experts failed to provide testimony that undermined or contradicted the LMH appraisers on the question of the film’s value on the open market. “It was uncontroverted testimony!” he said. “I remember saying to Adams, ‘Judge… one can agree or disagree, I guess, with Sotheby’s but they haven’t!’ They didn’t call anybody to say, ‘I’m an auctioneer and it’s only worth two million dollars.’ They didn’t call anybody! Why was it that… they never did it?” Feinberg’s question is a very good one. Maybe it was because there was no appraiser inside an auction house who would say such a thing.

  I asked both Feinberg and Dellinger to talk about how they arrived at the final number. Dellinger remembered that the three men had talked together during the hearing, carrying on a lively, cordial discussion over the various issues at hand. Based on Adams’s questions and the substance of their conversations, Dellinger was pretty sure that Adams was leaning toward a lower figure. It came as a shock to Dellinger to find out that he was the outlier. “I was really surprised,” he said, “when Judge Adams said, basically, well, ‘I agree with Ken.’” Although Feinberg and Adams came up with an award of $22 million, they strongly hoped to reach a consensus. Feinberg said, “I remember saying to Dellinger, ‘Walter, there’s so much divisiveness and emotion and conspiracy theories about all of this, doesn’t history require a unanimous decision?’”

  In my interview with him, Dellinger remembered that it was in that spirit that they dropped the number from $22 million to $16 million. “They came down hoping that I would come up,” he said, “but I wasn’t going above [my number]. We just had a different view for the reasons stated in the dissent.” In the end, Adams and Feinberg kept the award at $16 million and Dellinger dissented. I had heard a version of this story from my father’s partner Roger Pies. When he told it to me, he said, “Just like that. Six million dollars. Poof!”

  In fact, it does point to the arbitrary nature of the whole thing. Ken Feinberg agreed. “One reason I think the government was so quick to say ‘Let’s just move on and get this done’ [is that] there was no legal, principled way to come up with a valuation that could withstand legal scrutiny.” Instead, the question was subjective, emotional, philosophical, and even existential. In Ken Feinberg’s words:

  If you lived through that day, the film was priceless. If you didn’t live [through] that day, if you’re just a student of history, it can’t possibly have the same emotional impact. See, it’s a moment; it stands for a moment where there is no competition. We all knew this was historical. We all knew that this was a singular event. The whole hearing was very existential. Because, you see, what is this tiny piece of celluloid worth? It’s not a painting, it’s not something that we’re going to value because it can be reproduced in color and shown as a documentary. None of that is… it’s all irrelevant! What’s it worth as a piece of history? That’s an existential thing! That’s like historical impact! That, that thing you’re looking at. And it was a philosophical problem valuing that.

  Following the public announcement of the arbitration decision, I remember an extremely uncomfortable media frenzy, including segments on the evening news and articles in newspapers across the country. The phone rang off the hook with well-meaning friends calling to congratulate us, unwittingly adding to our embarrassment. Inside our family, the decision was acknowledged but not celebrated. Long after my father died, his dear friend Bill Truettner told me that, on the day of the decision, my father and several friends met for lunch, as they did every month. Bill said that Henry sat down, smacked both of his hands on the table, exhaled hard, and said, “It’s over.”

  The media coverage was mixed. There were anticipated headlines, like the San Francisco Chronicle’s “Tax
payers Gouged on Zapruder Film,” and predictable quotes, like the one from Gerald Posner, author of Case Closed (a best seller arguing that Oswald was the sole assassin in the murder of JFK), who opined: “I understand it’s the American way to get as much as you can for something, but there is something unseemly about it.” Judge Tunheim and Anna Nelson from the ARRB called the award “excessive,” and Jim Lesar and Harold Weisberg—still spitting mad about the copyright—called it “outrageous.” G. Robert Blakey, chief counsel for the House Select Committee on Assassinations in the late 1970s, did them one better, calling it “obscene,” pointing out that “this was just the raw film. Its value was purely symbolic.”

  Such flat and simplistic statements never contribute anything to the cultural conversation about the Zapruder film. Anyone who has really grappled with it knows that, on every level, it defies snap judgments and easy generalities. It is only by having the patience to sit with its maddening, shifting ambiguities, its internal contradictions and ironies, that any real understanding may be found. David Marwell wrote something about this to me that I thought perfectly encapsulated these contradictions. I had written to ask him if he thought the final award was a fair one. He wrote this back to me: “You pose a difficult question… How do you place a value on something that is without equal or analog? The simple answer is that you really can’t—its value is what someone is willing to pay, and that calculus is a product of the times and the context. Do I think $16 million was excessive? Yes, but it was the right price.”

  In some ways, the last, best word on the arbitration appeared in the New York Times opinion piece that Ken Feinberg had framed and hanging on his wall. It was neither favorable nor unfavorable. The author wrote that, if the “only standard of the film’s value is what the market will bear,” it was clear how the panel could award the sum of $16 million, given the high prices commanded by Kennedy memorabilia and the rise in the auction market in general. At the same time, the author also pointed out that what the government had purchased was an “expensive paradox,” a film too fragile to have any practical use and yet so deeply familiar that its images are burned into the American consciousness. It was unique, of course, and accidental; and even its uniqueness was accidental—a consequence of a time before cameras were ever-present (and little could the editors have imagined how much more prevalent they would become over the next decades).