Fact or Fiction? Applying the Copyright Act to Footage of Historical Events
10.21.2026
If the adage is true that “a picture is worth a thousand words,” then the Zapruder film – the 26-second home movie that caught the assassination of President John F. Kennedy – at 480 frames, is worth 480,000 words. Given the attention and writing devoted to it, this may be a woeful underestimate. The recent decision in Forum on Open Access to Government Records, Inc. v. Dallas County Historical Foundation, et al., has only added to the pantheon of writings on this topic and promises more to come.
The Forum on Open Access to Government Records, Inc. brought a claim for declaratory relief, seeking the right to use the Zapruder film in its work, “SCAM,” arguing that the Zapruder film in the National Archives is actually altered physically from its original form.[1],[2] The order on the motion to dismiss covers various topics.[3] However, one section – based on the Forum’s merger argument – highlights a key tension in copyright law between artistic expression and historical artifact.
It is axiomatic that the Copyright Act protects artistic expression, not facts.[4] While that may appear to be an easy line to draw, it becomes difficult to apply to photographs or videos of historical events. Photographs or videos, unlike other artistic mediums, freeze moments in time, similar to how amber fossilizes creatures from thousands of years ago. However, unlike a fossil, human decisions can change how a photograph or video captures a moment and, in turn, shape how we perceive that moment at large.
Take, for example, the famous photograph, “V-J Day in Times Square.” The photograph captures a sailor kissing a nurse as they celebrate the end of World War II. Speaking about his process, Alfred Eisenstaedt recounts: “[t]hen suddenly, in a flash, I saw something white being grabbed. I turned around and clicked the moment the sailor kissed the nurse. If she had been dressed in a dark dress I would never have taken the picture. If the sailor had worn a white uniform, the same. I took exactly four pictures. It was done within a few seconds. Only one is right, on account of the balance. In the others the emphasis is wrong – the sailor on the left side is either too small or too tall.”[5]
Few, if any, would argue that “V-J Day in Times Square” should be considered more a historical artifact than a work of art. The artistry in the image is apparent, and largely outweighs the historical import of a sailor and nurse celebrating – even if the background context is momentous. However, there is a point in which the line between historical artifact and artistic creation blurs. Where the artistic qualities of a work are less apparent, and the historical importance of the moment depicted is more significant, distinguishing between copyrightable artistic expression and noncopyrightable facts becomes more difficult. The Zapruder film has already faced multiple legal challenges, but footage of 9/11[6] and the Rodney King riots[7] have also given rise to copyright litigation. There are a few obvious reasons why these types of works are subject to fiercer debate in copyright circles.
First, there are serious First Amendment considerations. These works, unlike many other artistic works, are foundational to our understanding of a historical moment, both at the time it occurs and in the future. Allowing a person to monopolize and control the spread of these images and videos impairs our understanding of these moments.If footage of the Tiananmen Square protests, the fall of the Berlin Wall, or the moon landing sat in a vault for the remainder of their copyrights, the world’s collective understanding of those moments would be fundamentally altered. It would thus appear necessary to guarantee, at least to some degree, the ability to use these images or videos in books, textbooks, educational films, or any other educational format.
Second, copyright law is awkwardly applied to these types of works because it is intended to protect works sparked by artistic vision. Indeed, the copyright clause gives Congress the power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right” to their work.[8] The idea, at least in theory, is to incentivize artists by allowing them to capitalize on their work. However, Zapruder did not intend to capture the moment when President Kennedy was assassinated, nor did CNN intend to capture the tragic failure of the space shuttle Challenger. These videos and images largely arise by accident and outside the creator’s control. Thus, it can hardly be argued that copyright protection should be curtailed for these types of works.
Third, these works are often characterized not by their artistic qualities but by the extraordinary events they capture. People do not watch the video of Neil Armstrong’s first steps on the moon because of its lighting, angle or the camera and lens used; they watch it to see the remarkable moment when humans transcended Earth. Any other video or photograph that captured that moment would likely be a sufficient stand-in, regardless of the artistic decisions that created it.
In most copyright cases, originality and the merger doctrine are hardly ever discussed, and for good reason. Most of the time, the minimal threshold for originality is easily met, and the idea embodied in a work can be expressed a near-infinite number of ways. However, in rare circumstances in which a historical moment is captured on film, these underdeveloped areas of law receive more attention, even if the analysis is brief. Though they may rarely win cases, these areas of the law are still worth exploring.
Originality
The Copyright Act protects original works of authorship, fixed in a tangible form, except that protection does not extend to “any idea, procedure, process, system, method of operation, concept, principle, or discovery”[9] Courts often balance whether a work is protectable based on the “idea-expression” dichotomy.[10] “The sine qua non of Copyright is originality,” which requires both that the expression of a work be original to the author, rather than copied from other works, and that it “possesses at least some minimal degree of creativity.”[11] The level of creativity necessary to meet this requirement is very low.[12]
While photographs and audiovisual works are an enumerated category covered by the Copyright Act, early copyright cases challenged whether photographs or videos could be protected at all. For example, the court in Burrow-Giles Lithographic Co. v. Sarony was asked to determine whether copyright protection extended to photographs on the theory that “an engraving, a painting, a print, does embody the intellectual conception of its author, in which there is novelty, invention, originality, … while a photograph is the mere mechanical reproduction of the physical features or outlines of some object … and involves no originality of thought or any novelty in the intellectual operation connected with its visible reproduction in shape of a picture.”[13] The court recognized that such an argument “may be true in regard to the ordinary production of a photograph, and that in such case a copyright is no protection.”[14] However, it rejected this argument as applied to the photograph at issue, because it demonstrated the necessary originality and novelty to make it a product of the author’s “own original mental conception.”[15] In particular, the author’s posing of the subject of the photograph, the selection of the costumes and other visual accessories and the arrangement of the photograph, including its lighting and shading, were all factors that elevated the image to a work of art.[16]
Since Burrow-Giles, courts have regularly listed the elements that can give a photograph the necessary level of artistry, and most have found that almost any photograph qualifies for copyright protection.[17] Yet, these endeavors largely failed to examine the issue at any real depth. Moreover, the court in Mannion v. Coors Brewing Co. recognized that “the fact that a photographer made [choices about the film, camera or lens to use] does not alone make the image original. … Protection derives from the features of the work itself, not the effort that goes into it.”[18]
The Mannion court, attempting to create a coherent structure for analyzing originality, suggested three categories that could make a photograph original: rendition, timing and the creation of the subject.[19] For originality in the rendition, the court explained that it “resides … in such specialties as angle of shot, light and shade, exposure, effects achieved by means of filters, developing techniques.”[20] The court analogized to SHL Imaging, Inc. v. Artisan House, Inc., which involved a photographer’s extensive efforts to photograph mirrors, which required four days of shooting, the creation of a lighting effect that would allow him to photograph the mirrors without reflection and the selection of specific cameras, lenses and film type that would help create the effect.[21]
As to originality in timing, the Mannion court relies on Pagano v. Chas. Beseler Co., and on the images “Catch of the Day” and “V-J Day in Times Square,” to stand for the proposition that even unoriginal scenes can give rise to original works when timed properly.[22] As to the first, which concerned a photograph of the New York Public Library, the Pagano court reasoned that “[i]t undoubtedly requires originality to determine just when to take the photograph, so as to bring out the proper setting for both animate and inanimate objects with the adjunctive features of light, shade, position, etc. … The photographer caught the men and women in not merely lifelike, but artistic, positions, and this is especially true of the traffic policeman. The background, taking in the building of the Engineers’ Club and the small trees on Forty-First Street, is most pleasing, and the lights and shades are exceedingly well done.”[23]
“Catch of the Day” was taken by a famous wildlife photographer and captured the moment that a salmon jumped into the mouth of a brown bear.[24] Though these are striking works, Mannion recognizes that copyright protection extends only to the picture itself, not to the overall subject matter.[25]
Attempting to apply these categories to the Zapruder film seems awkward, as seen in both the Forum case and in Time Inc. v. Bernard Geis Associates.[26] This case involved the use of multiple frames of the Zapruder film in the form of charcoal sketches in a book covering the assassination. While the book did not reproduce any one frame in its entirety, it contained substantial portions of 22 separate frames, for which the author did not attain a license prior to the use.[27] As a result, Time Inc. – the rights holder of the Zapruder film – brought suit for infringement. In opposing the suit, the defendants first argued that the film lacked sufficient protectable elements, because “‘news’ cannot be the subject of copyright.”[28] The court rejected this argument, finding that there was at least some modicum of creativity, and that the unprotectable facts were distinct enough from the protectable expression to allow Time to hold a valid copyright in the work.[29] Nevertheless, the court found that the defendant’s copying was protected under the fair use doctrine, largely because the copies were reasonably necessary for a clear understanding of the theories outlined in the book, and because the uses did not appear to compete with the Zapruder film’s market.[30] As such, judgment was entered in favor of the defendants.
Both the Time and Forum cases found that the film was entitled to copyright protection, listing the artistic decisions that went into the film’s creation, such as “the kind of camera (movies, not snapshots), the kind of lens (telephoto), the area in which the pictures were to be taken, the time in which they were to be taken, and (after testing several sites) the spot on which the camera would be operated.”[31] However, there is little indication that Zapruder set out to capture a specific artistic vision as did the photographer in SHL Imaging. For example, it appears that Zapruder’s choice of equipment was largely determined by the camera he had, rather than by a specific choice among multiple types, and, indeed, he initially did not even bring a camera to film the event.[32] Further, the time in which the video was to be taken was determined mostly by the motorcade itself, rather than under Zapruder’s control.
While originality in timing may appear a better fit for the Zapruder film, the cases relied on in Mannion reflect photographers and artists who intended to capture the moment. For example, Thomas Mangelsen, the photographer of “Catch of the Day,” spent seven days by a river, taking pictures anytime a fish jumped out of the water near a bear.[33] While it may have involved some luck, Mangelsen intended to capture such a result. On the other hand, Zapruder clearly had no intention of capturing JFK’s assassination. The Times and Forum courts did not seem to find Zapruder’s intent to matter, but Burrow-Giles suggests that the photographer’s intent matters to some degree.[34]
Perhaps the Zapruder film meets the minimal originality requirement, even if it were to be scrutinized more. After all, Zapruder tested multiple areas from which to shoot the video, which suggests some minimal intentionality. Zapruder intended to video the president and, incidentally, captured one of the most historically significant moments in United States history. As the court fairly reasoned in the Time case, copyright law would undoubtedly protect the video if it were taken before the shooting, so there is no logic in denying protection to the film he actually captured.[35]
Yet, there are equally fair responses. First, Zapruder’s decisions were not of the kind that copyright generally protects. He watched the parade because he was an admirer of President Kennedy’s, and the footage was likely intended as a treasured keepsake – the moment that he got to see the president despite all odds – not as a work of art.[36] Moreover, a video from earlier in the parade differs from the Zapruder film because it carries far less historical significance. While it may not seem fair to deny someone the right to their footage solely on this ground, allowing a person a monopoly over the use of that footage creates substantially more First Amendment concerns than would a video from earlier in the procession. As such, there is at least some logic in denying copyright protection to something that happens to become critically important to our shared understanding of a major historical event.
This is not to suggest that every point-and-shoot photograph, or every video that captures an unexpected situation, must be denied copyright protection. However, the Boston Marathon bombing provides an interesting thought experiment surrounding originality. Within days of the bombing, the FBI released photographs of the suspected bombers, mainly taken from CCTV security cameras from the businesses in the area.[37] These videos, as with any CCTV footage, were not set up with an artistic purpose in mind; rather, they were purely utilitarian. Those photographs and videos of the suspects were widely used, including in the film “Patriots Day.”[38] Though a court has not been asked to pass on the question, one must ask: Does CCTV footage meet the originality requirement?
Merger
The foregoing discussion focuses mainly on the distinction between more “mechanical” and more “artistic” approaches to photographs and videos. However, Melville Nimmer’s lecture on this topic throws this simple breakdown for a loop. Nimmer seems to posit that the more striking the expression of a newsworthy event is, the less it should be entitled to copyright law based on First Amendment considerations.[39] Based on the My Lai massacre images, Nimmer reasons that the “idea-expression” dichotomy fails to advance First Amendment considerations in protecting images like that of the My Lai massacre, because “no amount of words describing the ‘idea’ of the massacre could substitute for the public insight gained through the photographs. The photographic expression, not merely the idea, became essential if the public was to fully understand what occurred in that tragic episode.”[40]
Though Nimmer does not explicitly say as much, he indicates that more expressive images can heighten the “idea” behind the work. After all, “V-J Day in Times Square” tells its audience far more about the relief and excitement from the end of World War II than words describing a sailor kissing a nurse ever could.[41] On the other hand, a simple point-and-click photograph of an event may not convey much more than can be described in words. Nimmer claims that the protectable expression cannot be meaningfully distinguished from the unprotectable idea that the photograph portrays, and, for these works, Nimmer suggests that a compulsory license scheme could help protect First Amendment considerations while minimally impairing the copyright law.[42]
Both the Time and the Forum courts had to grapple with the suggestion that the Zapruder film could not be copyright-protected because it is indistinguishable from the historical facts it captured. The Time court rejected the argument, stating that “Life claims no copyright in the events at Dallas. They can be freely set forth in speech, in books, in pictures, in music, and in every other form of expression.”[43] The Forum court agreed, stating that “[a]lthough the historical facts presented in the Zapruder film are not copyrightable, the Zapruder copyright is limited to a particular expression of those facts and reflects various artistic determinations made by Mr. Zapruder. Those same facts could be ‘expressed in various ways,’ making the merger doctrine inapplicable here.”[44]
Yet, the question that must be asked is whether this is actually true, or, put differently, whether any other account could reflect the facts of the Kennedy assassination in a meaningful way. Indeed, the Zapruder film has been examined extensively, most notably by the FBI and the Warren Commission.[45] The same can hardly be said for a news report, a history textbook, or a painting. Thus, the film, at least to some degree, captures the historical facts in a way that cannot necessarily be done by any other expression of that moment.
However, at the end of the day, the merger argument as applied to the Zapruder film may be most undermined by a practical assessment. Put simply, the “idea” or “historical fact” of JFK’s assassination has been widely disseminated for decades. It can hardly be said that the dissemination of information about one of the most widely discussed and heavily scrutinized moments in American history was impaired by the copyright protection afforded to the Zapruder film.
Moreover, the merger doctrine generally applies to ideas that are more finite, or more specific than the JFK assassination. For example, Kern River Gas Transmission Co. v. Coastal Corp. held that a map detailing the proposed route of a pipeline was not protectable, because there was only one way to express the idea of the route on a map.[46] However, the court in Mason v. Montgomery Data, Inc. declined to extend this logic to another case involving a copyright over a map, because the court found that the idea of a map of Montgomery County could be expressed in a variety of different ways, based on the way it included or did not include different features.[47]
In this way, applying the merger doctrine to a historical moment, such as the JFK assassination, appears unwieldy, particularly given the number of documents available to recount and discuss that moment. However, consider the Time court’s finding that charcoal sketches of the frames of the Zapruder film were copies of the film.[48] In this respect, a document that exists as the only expression of a historical moment or fact can certainly merge with the idea, because any knowledge one can have about that particular idea necessarily flows from its expression, and thus any further expression of that idea would technically be copied therefrom.
Neville L. Johnson and Douglas L. Johnson are partners at Johnson & Johnson, LLP in Beverly Hills, CA. Hunter Litterio is an associate at Johnson & Johnson, LLP. The firm focuses on entertainment, media, intellectual property and class action litigation.
This article appears in a forthcoming issue of EASL Journal, the publication of the Entertainment, Arts and Sports Law Journal. For more information, visit nysba.org/easl.
Endnotes:
[1] Zapruder, A. (Director). (1963). Zapruder film. National Archives and Records Administration.).
[2] F.on Open Access to Gov’t Recs., Inc. v. Dall. Cnty. Hist. Found., No. 3:25-cv-02034-B, 2026 U.S. Dist. LEXIS 174156, at *2 (N.D. Tex. Aug. 5, 2026
[3] For commentary on each aspect of the order, see Aaron Moss, Inside the Strange Copyright Fight Over America’s Most Famous Home Movie, Copyright Lately (Aug. 10, 2026), https://copyrightlately.com/zapruder-film-copyright-ruling/.
[4] Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991) (“… facts are not copyrightable.”).
[5] Alex Kershaw, The Kissing Sailor, Friends of the National WWII Memorial (Aug. 14, 2025), https://www.wwiimemorialfriends.org/blog/the-kissing-sailor.
[6] Fioranelli v. CBS Broad. Inc., 551 F.Supp. 3d 199 (S.D.N.Y. 2021).
[7] See, e.g., Los Angeles News Service v. CBS Broadcasting, Inc., 305 F.3d 924 (9th Cir. 2002).
[8] U.S. Const. art. I, § 8, cl. 8.
[9] 17 U.S.C. § 102.
[10] Feist, supra, 499 U.S. at 350.
[11] Id. at 345.
[12] Id.
[13] Burrow-Giles Lithographic Co. v. Sarony, 111U.S. 53, 58–59 (1884).
[14] Id. at 59.
[15] Id. at 60.
[16] Id.; see also Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1074 (9th Cir. 2000) (citing the elements from Burrow-Giles that elevated a photograph to a work of art).
[17] See, e.g., Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 116 (2d Cir. 1998); Rogers v. Koons, 960 F.2d 301, 307 (2d Cir. 1992); Gross v. Seligman, 212 F. 930, 931 (2d Cir. 1914); SHL Imaging, Inc. v. Artisan House, Inc., 117 F.Supp. 2d 301, 311 (S.D.N.Y.2000).
[18] Mannion v. Coors Brewing Co., 377 F.Supp. 2d 444, 451 (S.D.N.Y. 2005).
[19] Id. at 452–54.
[20] Id. at 452 (quoting Hon. Sir Hugh Laddie et al., The Modern Law of Copyright and Designs § 4.57 (3d ed. Butterworths 2000)).
[21] SHL Imaging, Inc. v. Artisan House, Inc., 117 F.Supp. 2d 301, 303–04 (S.D.N.Y. 2000).
[22] Mannion, 377 F.Supp. 2d at 452–53.
[23] Pagano v. Chas. Beseler Co., 234 F. 963, 964 (S.D.N.Y. 1916).
[24] Mannion, 377 F.Supp. 2d at 452–53.
[25] Id.
[26] Time Inc. v. Bernard Geis Assocs., 293 F. Supp. 130, 143 (S.D.N.Y. 1968).
[27] Id at 138-139.
[28] Id at 141.
[29] Id. at 141-144.
[30] Id. at 146.
[31] Id
[32] See Camilla Tominey, Why the Man Who Captured Kennedy’s Death Never Made Another Film, The Telegraph (Nov. 12, 2023).
[33] See Carly Everett, Wildlife Photography – What Does It Take to Get the Shot? Yellowstone Nat’l Park (Oct. 2, 2017), https://www.yellowstonepark.com/photos/take-best-wildlife-photos/.
[34] Burrow-Giles, 111 U.S. at 58–59.
[35] Time, 293 F. Supp. at 143–44.
[36] See Tominey, supra note 26.
[37] See, e.g., Press Release, Fed. Bureau of Investigation, Surveillance Video Related to Boston Bombings (Apr. 18, 2013), https://www.fbi.gov/video-repository/newss-surveillance-video-related-to-boston-bombings/view.
[38] See, e.g., Lanre Bakare, Patriots Day Review: Boston Marathon Bombing Movie Is Tense Yet Respectful, The Guardian (Nov. 16, 2016), https://www.theguardian.com/film/2016/nov/18/patriots-day-review-boston-marathon-bombing-movie-is-tense-yet-respectful.
[39] Melville B. Nimmer, Copyright vs. The First Amendment, 17 J. Copyright Soc’y U.S.A. 255 at 8 (1970).
[40] Id.
[41] This is a purely demonstrative example. Nimmer notes that he would cabin his ideas to “news photographs.”
[42] Id. at 9.
[43] Time, 293 F. Supp. at 143. Interestingly, though the court states that the fact can be captured in every other form of expression, it also found that charcoal sketches of the film infringed upon the video.
[44] Order at 3, Forum, No. 3:25-cv-02034-B.
[45] See, e.g., Evan Andrews, What Happened to the Zapruder Film, History (Nov. 19, 2013), https://www.history.com/articles/what-happened-to-the-zapruder-film.
[46] Kern River Gas Transmission Co. v. Coastal Corp., 899 F.2d 1458, 1463–64 (5th Cir. 1990).
[47] Mason v. Montgomery Data, Inc., 967 F.2d 135, 139–140 (5th Cir. 1992).
[48] Time, 293 F. Supp. at 144.
[49] Press Release, Nat’l Oceanic & Atmospheric Admin., NOAA Scientists Virtually Discover New Species of Comb Jelly Near Puerto Rico, (Nov. 20, 2020), https://www.fisheries.noaa.gov/feature-story/noaa-scientists-virtually-discover-new-species-comb-jelly-near-puerto-rico.
