Unreported / Non-Citable
Background
The Forum on Open Access to Government Records published a book arguing that the version of Abraham Zapruder’s film held by the National Archives and Records Administration was altered to conceal facts about President John F. Kennedy’s assassination. The book reproduced 72 frames from the film without a license from the Dallas County Historical Foundation, which operates The Sixth Floor Museum and claims ownership of the film’s copyright.
Before publication, the Forum sought permission from the Museum to use the frames and asked it not to oppose the Forum’s requests to obtain frames from NARA. The Museum denied or did not respond to those requests. NARA allowed the Forum to view slides in person but refused reproduction without the Museum’s permission. The Forum sued for declarations invalidating or limiting the copyright, a declaration that its book made fair use of the frames, and an injunction requiring NARA to publish certain frames in its electronic FOIA reading room. Both defendants moved to dismiss.
The Court’s Holding
The court held that the Forum had Article III standing to pursue its declaratory-judgment claims against the Museum. The Forum was actively using the frames without a license, the Museum asserted copyright ownership and had refused permission, and NARA relied on that asserted copyright to restrict reproduction. The Museum’s disclaimer of imminent litigation did not eliminate the concrete controversy. The court also held that FOIA authorizes courts to enjoin agencies from withholding records that must be published under the Reading-Room Provision, rejecting NARA’s argument that courts may order only production to an individual complainant.
On the merits of the pleadings, the court allowed the Forum’s claims based on waiver as to frames 207–212, abandonment through decades of alleged inaction, and fair use of frames already reproduced in the book to proceed. It also allowed the FOIA claim, holding that the Reading-Room Provision’s electronic-publication requirement can apply to qualifying records regardless of whether they were created before November 1, 1996 or by a third party. The court dismissed without prejudice the Forum’s claims based on lack of originality, fraud on the Copyright Office, defective copyright transfers, and suppression of facts. It dismissed the idea-expression merger claim with prejudice because the film reflects Zapruder’s particular expressive choices. The surviving claims were not finally adjudicated; the court held only that they were plausibly pleaded.
Key Takeaways
- A copyright owner’s assertion of rights, refusal to license, and interference with access may create an actual declaratory-judgment controversy even without an express threat to sue.
- The court construed FOIA’s remedial provision to authorize injunctions requiring electronic reading-room publication, and held that the statute’s current electronic-access mandate is not limited to agency-created records dating from November 1, 1996 or later.
- The Forum plausibly pleaded limited waiver, abandonment, fair use, and a FOIA violation, but its originality, registration-fraud, transfer-defect, merger, and suppression theories were dismissed.
Why It Matters
The opinion adopts the Second and Ninth Circuits’ broader understanding of judicial remedies for violations of FOIA’s Reading-Room Provision rather than the narrower approach associated with the D.C. Circuit. If that interpretation survives later proceedings and review, agencies may face orders requiring public electronic access to qualifying frequently requested records, not merely disclosure to the plaintiff who sued.
The ruling also illustrates that a declaratory copyright dispute can be ripe before an infringement action is threatened and that decades of alleged nonenforcement may support an abandonment theory at the pleading stage. At the same time, the decision does not invalidate the Zapruder-film copyright, establish fair use, or order NARA to publish the film; those surviving issues remain for later adjudication.