I think you are mistaken: there are 'misunderstandings' galore. To start with the finance! I have been open and frank in my last letter about this. You want me to make 'allowances' for your present situation. But I have made them for some years now. As per the provision in the Constitution I have loaned you the $600 when you seemed to need it, and when I had the money lying in the Bank without doing any work. So, as Grand Treasurer of the OTO, I did not hesitate for a moment. But years have gone by now, and the situations have changed: first, in that you are through with your University courses, and the time and work devoted to it should begin to bear fruit. Second: in order to buy this H.Q. we had to take a loan on which I pay over 7% interest, and the bank intimated strongly that they would wish a larger cash payment to reduce the loan.
So it is up to you to make allowances!! (The unfortunate thing is that I had also given a loan to Meeka; not only does she refuse to pay me back, but is arrogant and insolent!)
The second point where there is 'misunderstanding' is where you expect me to give advice on magical, etc., training. I don't now how often I have had to explain that I am not a teacher in the ordinary sense of the word as far as showing ritual, practices, yoga technique, etc. etc. I am, as it were, a case apart, and nobody will make an effort to believe me. I call all this the lower magick. It may be entirely different when it comes to higher planes.
Once more you are mistaken when you say that I am unwilling to help you in this difficult period. Oh no! I will say this, to be constructive: that if you start your practices and rituals with a sincere heart, a firm will that gradually gets inflamed and becomes passionate, then you will automatically attract your HGA, and the higher powers that are guiding those that want to belong to the small group of pioneers for Thelema. You have the books and lots of MSS. All you have to do is to make full use of them. This refers very particularly to the explication of the IX°, as I told you, and which you neglect so tragically. (I believe this is due to the fact that you live too strongly on the intellectual planes, or rational planes, and therefore are blind to the subtle effect all that work has on higher planes - which you do not see. I believe that if you keep up with your ritual work assiduously for a time your eyes will begin to open; then a talk between us may become more fruitful.)
This also applies to your plan of 'starting your own nucleus'. I am slightly sceptical before you have not fortified your aura and your finer senses by a prolonged course of ritual etc.
'Uniting fragments' paragraph: again you fail to see my point of view. It says: "Pity not the fallen" - Achad and his group, Smith and most of his group, Leffingwell, and most positively Jack Parsons, belong to the fallen. Meeka is a traitor; Culling very doubtful. But there are others who have not fallen. One more thought: one general, though without army is better than an army without a general.
P.S. What I advise is that you first put your house in order, by this I mean that you make sufficient money to get even, pay debts, if any, become free from worry. You can do your practices at the same time.
This is, at long last, a case where I am an expert and can give practical advice. For over 20 years I held jobs, or had a business of my own, did my practices as I went along, and paid to H.Q. very substantial sums of money all the time. But then, because I did, the Gods looked with great favour on my work.
When I had salesman's jobs, I actually and literally did my practices while waiting in reception rooms, or while walking from one factory to the next, or while being in buses or trolley cars.
A frequent error is that a candidate is too much obsessed by spiritual and magical advancement before he has not absolved the lessons of the material plane. "Did the king weep at dawn because the crown of the pyramid was yet unquarried in the distant land"?
"I have not yet had a decision from Maine, nor have I heard from Immigration; and I expect not to hear from either before the U.S.A. decide if they want to go down the drains with Reagan or merely hover at the brink with Mondale. Should Reagan win, I believe I will lose my cases and be deported."
This is an action for copyright and trademark infringement. The plaintiffs are the Society Ordo Templi Orientis (SOTO), a Tennessee non-profit corporation and Marcelo Ramos Motta (Motta). SOTO was organized to aid in the promulgation of the teachings of Aleister Crowley, an Englishman who, during the first five decades of the twentieth century, was the dominant figure in the Ordo Templi Orientis (OTO), an unorganized masonic organization. Motta is the chief officer of SOTO and a member of the OTO.
The defendant is Samuel Weiser Inc. (Weiser), a Maine corporation, which is a publisher and distributor of occult books. Approximately 5% of Weiser's total business, annually about $1,400,000, is devoted to the works of Crowley.
The facts were developed through the testimony of five witnesses and the introduction of over 150 exhibits. The plaintiffs' witnesses were Motta and Martin Starr, a student of Motta's. The plaintiffs also called Donald Weiser, the president of Weiser, to establish SOTO's damage from infringement and James Wasserman, an ex-student of Motta's to establish the non-binding effect of a California judgment which defendant contends is a bar to plaintiff's proceeding here. Defendant called both Donald Weiser and Wasserman as well as Grady McMurtry, a member of the OTO and the chief officer of SOTO's counterpart in California (C.O.T.O.); he was called to establish the binding effect of that California judgment as well as plaintiff's lack of standing generally.
Below plaintiffs analyze the facts as they relate to the issue of ownership of and responsibility for enforcing the copyrights of Crowley; they then turn to the law controlling those facts. Second, they analyze the relevant facts and law for each of the alleged infringements, one work at a time. Third, they briefly address trademark infringement.
The OTO was formed around the turn of the century in Germany. Its first leader or Outer Head (OHO) was Karl Kellner . The OHO is responsible for the property of the OTO. Kellner was succeeded by Theodor Reuss. Under those two gentlemen the OTO took form as a Masonic order. One of Reuss' followers was Aleister Crowley, who was designated by Reuss to succeed him. Designation by one's predecessor has been the means of formalizing succession to the position of OHO within the OTO. That rule of succession is set out in an unpublished portion of the OTO Constitution .
During his tenure as OHO Crowley wrote prolifically. He had begun in 1904 with the publication of the Book of the Law, and over the years he wrote books, poetry and countless letters, several of which are exhibits in the case. Many of those works were (and many still are) unpublished.
Crowley died in 1947 and by will left his copyrights to the OTO. That will has been recorded with the Registrar of Copyrights. All parties are in agreement that Crowley designated Karl Germer as his successor as OHO before he died. There is a dispute as to the identity of Germer's successor. Plaintiffs contend it is Motta.
Before his death Crowley was visited by Grady McMurtry, who was one of the California members of the OTO. Those visits took place in 1944 in London. During one of them Crowley inducted McMurtry into the IX° of the OTO. Later, Crowley wrote McMurtry a series of letters which have come to be called the "Caliphate Letters" by McMurtry and his followers.
McMurtry and his followers comprise a portion of the OTO which is incorporated in California and which claims McMurtry as the leader of the OTO because of the Caliphate Letters. McMurtry does not claim to be the OHO. The Caliphate letters provide only that:
McMurtry testified that it was not inaccurate to say that there are two branches of the OTO in California, not just his, and that if Crowley had written to someone else using language similar to that used in the Caliphate Letters, then his claim to be Crowley's designated successor to Germer would be undercut.
Of course there is such a letter and McMurtry's claim to be Germer's successor is groundless.
In 1947, after he had suggested to McMurtry that he might be Germer's successor, Crowley made the same suggestion to one Frederick Mellinger. The language of the two key letters is set out below. ... I think it quite possible that after (Germer) and myself have moved on into the next stage, you may find yourself saddled with the whole responsibility of carrying on the work of the order.
... In the event of my death, (Germer) is of course my successor, but after his death the terrible burden of responsibility might very easily fall upon your shoulders. Crowley obviously recognized that Germer would appoint the next OHO and that he, Crowley, could only suggest Germer's successor. McMurtry did not testify that Germer had designated him as Germer's successor.
The plaintiffs presented evidence that Germer chose someone other than McMurtry or Mellinger: he chose Motta. Germer had a long and close relationship with Motta. Motta assisted Germer in at least one crucial aspect of his duties as OHO: publication of OTO material. He did this by editing Liber Aleph, which was published in the mid-1950's and also by the translation of several Crowley works into Portuguese and supervising their publication in Brazil. He corresponded extensively with Germer about thelemic matters and was Germer's prize pupil in that area.
McMurtry, on the other hand, had little positive contact with Germer and, in fact, had a falling out with him over questions of policy. McMurtry provided no financial support to either Mr. or Mrs. Germer, while Motta did provide such support although he was himself in straitened financial circumstances. In fact, McMurtry was so far removed from OTO matters by the 1960's that he did not learn of Germer's death until 7 years after it happened. That ignorance existed even though McMurtry admitted "(Germer's) death was an important event in the Order's history."
On the other hand, Motta knew of the death almost immediately and with that knowledge also learned that Germer had selected him to be his successor by identifying him as "the Follower". That choice was imparted on his death bed but there had been earlier suggestions that Motta was considered a very important member of the OTO by Germer. Cf. Seckler Deposition. One of those indications was Germer's desire that Motta take charge of the OTO library, which Motta was unable to do then and after Germer's death because he lacked sufficient money.
Motta had first become a student of Germer's in the early 1950's. He had corresponded with him regularly. He visited with Karl and Sascha Germer on several occasions. One of those occasions was a visit in Barstow, California during which Motta visited several other members of the OTO who then lived in California. Motta also spent a good deal of time reviewing the contents of the OTO library while he was in Barstow. That library consisted of what had been Crowley's which, after his death, was integrated into Germer's. While he was in Barstow, Motta had been inducted into the IX° of the OTO by Germer.
Motta, who was in Brazil at the time of Germer's death, remained there until 1981. He has devoted his time to Thelemic writing and OTO activities from that death until today.
This is the key testimony respecting control of the OTO. Below plaintiffs argue that SOTO alone is entitled to enforce the copyrights of Aleister Crowley.
The evidence supports plaintiffs' position that Motta is the OHO, albeit, by his own testimony, a reluctant one. Germer alone had the tight to select his successor. The OTO member with whom he was closest was Motta. One with whom he had a serious falling out was McMurtry. While Germer never explicitly said: Motta is my successor, he certainly said so indirectly, calling Motta both a follower and an heir. Even if Crowley could designate Germer's successor, he did not do so; the evidence before the court on this issue points not to McMurtry but to Frederick Mellinger as the potential successor.
In essence McMurtry dropped out of the OTO from the mid-50's until 1970. Motta has labored unceasingly in its behalf since the early 1950's and as the OHO is entitled, in fact duty bound, to enforce the Crowley copyrights. This is a duty which McMurtry has ignored.
Defendant has argued that plaintiffs have no right to bring this action. Defendant contends that if any individual has the right to prosecute this action it is Grady McMurtry. Defendant's argument is erroneous.
Defendant seems to say that Motta is not authorized by the OTO to enforce the organization's copyright claims and that only McMurtry is so authorized. At issue here is not whether McMurtry could have brought this action. Though plaintiff claims to be the Outer Head of the OTO, he does not argue here that McMurtry in his alleged capacity as head of the California chapter could not have instituted this action. That issue need not be decided, as McMurtry did not bring the action and did not intervene in this action.
Even if this Court were to make a determination that plaintiff Motta was not the Outer Head (an issue this Court need not decide) plaintiff Motta would still have the right to prosecute this action. The situation is analogous to the line of cases in which members of church groups have successfully sought to employ the courts to enforce charitable trusts. In an extensive discussion of which members have the right to enforce such rights, it is stated: ... it must be borne in mind that the rule applicable to a public charitable trust does not apply to a private charity. Where a charitable gift is for the benefit of some particular person, corporation, or class of persons, as distinguished from the public generally, then that would be a private charity, and the beneficiary or beneficiaries, of course, could enforce the execution of the trust.
'If a trust exists for the benefit of a definite local church... the members and pewholders of that church have a rather certain, definite interest in the enforcement of the trust. While the benefits will go to all the community... and also to the general public, it is practically sure that the members of the church will all of them obtain some advantage. It is therefore not surprising to find that a number of courts have allowed a church member or pewholder in such a case to sue to enforce the charity.' Bogert, The Law of Trusts and Trustees, #414, p. 344 (1964).
The rule enunciated by the above quoted authorities is consistent with the reasons underlying the general rule relating to public charitable trusts, because the problems of identification of beneficiaries and of undue harassment are not present when the class of persons to be benefited is a small, easily identifiable group, as distinguished from the public generally. It is also consistent with the modern trend of the law as it relates to 'standing'. 94 ALR3rd 1197, 1202 (1979). Courts have generally allowed those with a special interest in the enforcement of a trust (or legal cause of action) to bring suit. Professor Scott sets forth the rule as follows: a person bringing the action "must show that he is entitled to receive a benefit under the trust which is not merely the benefit to which members of the public in general are entitled". Scott, The Law of Trusts #391, 3007, n. 2 (3rd e. 1967).
There is little doubt that the OTO as an association owns the copyrights to the Crowley works. This is not a situation where two factions of an unincorporated association each claim to be the original association and the holder of its assets; that is the situation in the California litigation between SOTO and COTO. In that situation the need to determine the legal ownership of the property is certainly ripe for judicial intervention. But that is not the case here.
If plaintiff prevails the court's ultimate judgment will run to the OTO. Should Mr. McMurtry or any other member of the OTO prevail in their California challenge to Motta's OTO status, they will be entitled to administer the copyrights. Defendant should not be allowed to take refuge behind McMurtry's failure to intervene here.
In fact, one can surmise that had McMurtry brought this action for the OTO, defendant would have argued that he was unable to do so because Motta was the proper plaintiff. Defendant's argument is calculated to avoid the ultimate issue in this case, i.e., defendant's infringement of the Crowley copyrights.
SOTO is the owner of the Crowley copyrights. Motta is the OHO. Below plaintiffs address, in order of introduction at trial, the amount of damages to which they are entitled for infringement of those copyrights.
The essence of copyright infringement is substantial copying. That defendant has substantially copied is not in dispute. Rather, defendant seeks to avoid liability through a series of defenses which are addressed below.
A. THE MAGICAL RECORD OF BAPHOMET or REX DE ARTE REGIA. This work has never been published by permission of Crowley or the OTO or SOTO. Plaintiffs have applied for registration.
Defendant has taken the position that registration is a prerequisite to maintenance of an infringement action. Defendant is correct, but as this registration will be effective as of the date of the application, plaintiffs have met the requirement of the statute. A plaintiff may register its work after the filing of the complaint. A case similar to this does not require an amended pleading once the matter has gone to trial.
Nevertheless, plaintiffs have filed with this Brief a Motion to Amend their Complaint, and an amended complaint, to conform to the evidence presented concerning registration; that amendment relates back to the date of filing and is permitted even though defendant objected to admission of the applications for registration. Defendant's objection does not go to the substance of the infringement claim but only to a technicality. Because plaintiffs have complied with the statute they turn to the remaining questions.
Pages 1 through 82 of the Symonds and Grant work entitled THE MAGICAL RECORD OF THE BEAST is a copy of an Aleister Crowley diary entitled REX DE ARTE REGIA; pages 83 through 300 of that work is a copy of a diary entitled THE MAGICAL RECORD OF THE BEAST.
Defendant sold about 500 copies of that work for a price between $17 and $20; its profits were $850 (This is defendant's gross profit figure. Defendant offered no testimony about its net profit on those sales, and so that amount is the proper amount of the damages to which plaintiff is entitled.) All the sales were made prior to the effective date of the statute of limitations which, if not waived, bars a claim to all of plaintiffs' damages for the infringement of this work. However, defendant has waived the statute of limitations. (This defense, if successful, will bar all damages sought by plaintiff for Rex de Arte Regia, Dao De Ching (sic), Astrology, The Gospel According to St. Bernard Shaw and The Rituals of the OTO. For the other works in question, the statute of limitations is only a partial bar to plaintiffs' recovery of damages as set forth in the discussion of each work.)
Defendant, five days prior to trial in this matter, sought to amend its answer to raise a multitude of affirmative defenses. There is no doubt that under Rule 15(a) this Court is empowered to either allow defendant's motion. (sic) There is no strict timeline by which Rule 15 operates; however A party who delays in seeking an amendment is acting contrary to the spirit of the rule and runs the risk of the court denying permission because of the passage of time. In most cases, delay alone is not sufficient reason for denying leave. However, an amendment clearly will not be allowed when the moving party has been guilty of delay in requesting leave to amend and, as a result of the delay, the proposed amendment, if permitted, would have the effect of prejudicing another party to the action.
As a general rule, the risk of substantial prejudice increases with the passage of time... Wright & Miller, Federal Practice & Procedure, #1488, at 438. Leave to amend is more readily granted when the motion is made at a late date due to circumstances that were not within the purview of the amending party prior to the motion being made. However, in the absence of oversight or excusable neglect, courts have denied leave to amend when the moving party knew about the facts on which the proposed amendment was based but omitted the necessary allegations from the original pleading... 6 Wright & Miller, #1488 at 443. The court at trial stated that its guideline for ruling on this motion is Foman v. Davis, 371 U.S. 178 (1962). In Foman plaintiff was granted a late leave to amend. However, that amendment sought only to plead an alternative basis for recovery based upon the same set of facts. That is not the case here. Secondly, in Foman, the Supreme Court was setting forth as a guideline only the proposition that leaves to amend should not be denied without "any apparent or declared reasonÑsuch as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of the allowance of the amendment, futility of the amendment, etc. ... Id. at 182.
The timeliness of defendant's motion is a large consideration in determining the appropriateness of the court's allowing amendment. The defendant's motion was filed five days before trial and some two years after his original answer. In Dunn v. Koehright Co., 546 F.2d 1193 (5th Cir. 1977) under a similar set of facts (the motion to answer the statute of limitations was filed the morning of trial, some five years after defendant's answer) the trial judge disallowed amendment and the Fifth Circuit affirmed...
The motion to amend the answer should be denied. (This argument applies to several other of the infringing works and will not be repeated below. If it is not accepted by the court, then plaintiff is only entitled to damages for the infringements that have occurred since December 4, 1978, which for the ease of the court plaintiffs have treated as January 1, 1979.)
This work, while unpublished by Aleister Crowley, has been published by the OTO under the auspices of the plaintiffs. k was published in 1980 with annotations prepared by Motta. It has been registered as part of a larger work.
Page 13 through 116 of Stephen Skinner's TAO TEH KING is a copy of a work of the same title by Aleister Crowley.
Defendant sold 1,500 copies of the Skinner work all before 1979. Defendant's net profits for those sales was $2,962.50.
This work is an unpublished Crowley essay which Motta read when he was in Barstow, California. Plaintiff applied for registration of the copyright on this unpublished work on March 7, 1984 e.v.
Pages xvii through 116 of Stephen Skinner's ASTROLOGY is a copy of a series of essays by Aleister Crowley collected under that title. Defendant sold 2,104 copies of that work and made a net profit of $2,447.01 on those sales. They were all sold before 1979.
D. THE BOOK OF THOTH. The Book of Thoth is an unpublished work which contains both text and drawings. The drawings were painted under the careful direction of Aleister Crowley. Only 200 copies of this work were printed and all were distributed to members of the OTO. That type of limited printing and limited distribution is not sufficient to constitute a publication within the meaning of the Copyright Act so that the lack of a copyright notice on the original work would inject the work into the public domain... Likewise, the placement for private sale by Karl Germer in the late 1940's of a few copies of this work does not constitute a placing of the work on public sale by the author; Germer was not the author. Even Donald Weiser recognized that this was a limited publication. (Contrary to Weiser's testimony, there were only a "few" copies of this work placed with the defendant for sale by Germer. Germer's contemporaneous account should be believed over Weiser's 40 year old vague recollection at trial.) Plaintiff has applied for copyright registration for this work. Registration has been effected. See plaintiff's Amended Complaint.
However, even if the original printing and distribution of the 200 copies or Germer's later placement for sale of the few copies constitutes a publication, the work has not been injected into the public domain. The original printing and distribution took place in England. No copyright notice was required on works published outside the United States prior to 1978... That decision and rationale are approved by Nimmer.
Also, the manufacturing clause of the 1909 Act does not bar this action. That section of the Act, #16, required that in order for a work in the English language to be entitled to protection under the Act, it had to be printed in the United States with certain exceptions not here at issue. This work was not printed in the United States. However, the manufacturing clause is no longer law under the 1976 Act and while there are no cases specifically on point, Professor Nimmer takes the position that a violation of the manufacturing clause did not inject the work into the public domain; rather, it only stayed the right of the copyright proprietor to bring an infringement action until the effective date of the Copyright Act of 1978. That date has now passed and plaintiff is allowed to proceed...
THE BOOK OF THOTH published by Samuel Weiser, Inc. in 1972 is a photocopy of THE BOOK OF THOTH written by Aleister Crowley in 1944.