THE NEW COURT OF LAST RESORT

In 1983 e.v., Marcelo Ramos Motta brought a civil lawsuit against Samuel Weiser, Inc., for copyright infringement in the matter of works authored by Aleister Crowley. Weiser had published a number of Crowley’s works, and Mr. Motta’s civil action was based on the fact that both A.C. and Mr. Germer had clearly willed those copyrighted works to the O.T.O.  Mr. Motta alleged that no permission had been obtained from the O.T.O. and that these works were therefore unlawfully infringing upon copyrights held by the O.T.O.

9.1  Outline of Proceedings

9.1.1   Administrative Information – Marcelo Ramos Motta, et al., Plaintiffs versus Samuel Weiser, Inc., Defendant. The case was heard in the United States District Court, District of Maine, Portland, Maine, Civil No. 81-0459P. Trial dates were Thursday, March 1, Friday, March 2, 1984 e.v., and Tuesday, March 13, through Thursday, March 15, 1984 e.v.; Judge Gene Carter presiding, without jury. Robert Mittel, Esq., appeared for the Plaintiffs; James Erwin, Esq., appeared for the Defendant.
[39A]

9.1.2   Direct testimony from Mr. Motta was given on the opening day of proceedings. That testimony included an explanation of the background history of the O.T.O., and included information about Mr. Germer. Mr. Motta testified at length about his relationship with Mr. Germer, as well as his visit to Barstow during 1956 e.v. when he was shown the contents of the Crowley-Germer Library. Cross-examination was made, and it was during this testimony that Mr. Motta initially explained his reluctance to publicly claim the title of the O.H.O.

9.1.3   Re-direct testimony was given by Mr. Motta on the second day of the trial. In response to a question from the Court about the similarity of Mr. Motta’s efforts on behalf of the O.T.O. and those of McMurtry, Mr. Motta categorically stated, “No, Your Honor. It’s not the same kind of activity. Mr. McMurtry is much less demanding about the quality of the members and the conduct of the members than I am. I think I can safely state that he will take anybody who will accept his authority.”
[39, 214]

9.1.4   On day three, Mr. Motta gave additional testimony on his life story, and especially his activities in relation to Thelema during the 1950s e.v. through the 1980s e.v.   It was also on this day that Martin P. Starr gave the following testimony:

Mittel: Earlier in your testimony I was asking you about the membership process, and you said that two people had actually gone through the entire process. Can you give the Court some estimate of how many people started the process, say in the last year or two?Starr: Oh, in the last year or two, I would say it is close to 100 people.
[39A, 272]

9.1.5   Redirect testimony from Mr. Motta continued on the fourth day, as well as direct testimony from Donald Weiser, additional direct testimony from Martin Starr, and both direct and cross-examination testimony from Grady McMurtry. McMurtry testified about the deterioration of his relations with Mr. Germer during the 1950s e.v., as well as his “extraction” of Mr. Motta’s personal correspondence from the archives.

9.1.6   The final day of the proceedings included further cross-examination of McMurtry, as well as direct testimony from James Wasserman, and one final bit of direct testimony from Mr. Motta. Proceedings concluded on Thursday, March 15, 1984 e.v.

9.2   Findings

This Section contains the substance of Findings of Fact, Conclusions of Law and Opinion, by Carter, District Judge. [39B] What follows is our summary of this document:

9.2.1   Introduction –

i. This is an action for copyright and trademark infringement relative to the literary legacy of Aleister Crowley.
ii. Plaintiffs claim ownership of the Crowley copyrights and allege that these copyrights were infringed by Defendant.
iii. Motta alleges that he is the successor to Karl Germer as O.H.O. of the O.T.O.
iv. “The Court has concluded that Plaintiffs have failed to sustain their burden of proving that they own the Crowley copyrights in their individual capacities or, alternatively, that they may derive ownership from the OTO. Therefore, their claim of copyright infringement must fail.”
v. “In making the following findings of fact, the Court found it unnecessary to attempt to penetrate the mystical nature and occult practices of the OTO.”
[39B, 1-2]

9.2.2   Findings of Fact –

i. Parties agreed that A.C. was the supreme authority in the O.T.O. as O.H.O.
ii. “Neither party contests the validity or legal effect of the will, {A.C.’s}   which was probated in England in 1949 {e.v.}  .”
iii. Plaintiffs contend and Defendant does not contest that Karl Germer succeeded Crowley as O.H.O. of the Order.
iv. “Motta was initiated into the O.T.O. by Mr. Germer in California in 1955 {e.v.}   or 1956 {e.v.}  . Tr.{Transcript}  at 39-40. Motta corresponded with Germer, often regarding O.T.O. matters, regularly until Germer’s death.”
v. Plaintiffs’ Exhibit 7 (1956 e.v. letter from Mr. Germer to Mr. Motta stating intended appointment as representative) does not constitute direct evidence that Germer appointed him O.H.O.
vi. Plaintiffs’ Exhibits 13 and 14 (letters from Mr. Germer, 1961-62 e.v., to Mr. Motta, stating Mr. Germer’s intention to have the Library relocated to Brasil, and that he would like to see a headquarters established in Brasil) also do not constitute direct evidence of appointment as the O.H.O.
vii. The Plaintiffs relied heavily on Exhibit 16(b): a letter from Mrs. Germer to Mr. Motta five days after Mr. Germer had died, in which she makes the “You are the Follower” statement.
viii. Plaintiffs also relied on Exhibit 19(b): a letter from Mrs. Germer to Mr. Motta, dated January 26, 1963 e.v., in which she states, “But Spiritually you are the Heir!”
ix. “The ‘You are the Follower’ statement does little to substantiate Motta’s claim to be Germer’s successor as O.H.O. of the O.T.O.”
x. The word “Follower” does not have any particular meaning in O.T.O. parlance, the existence of Liber AL II 76 to the contrary notwithstanding.
xi. The “Follower” statement cannot be admitted, as it is second generation hearsay.
xii. Mrs. Germer exhibited symptoms of mental deterioration, and “her credibility is subject to profound question.”
xiii. “Some circumstantial support for Motta’s claim is provided by the evidence, summarized above, indicating that he corresponded frequently with Germer and that he had a serious commitment to studying, editing, and publishing the works of Aleister Crowley.”
xiv. Evidence was introduced that belies Motta’s claim: his earlier statements that he was not the O.H.O., or was ineligible to be O.H.O.; also that he preferred the A.’.A.’. to the O.T.O.
xv. “Examples of Motta’s peculiar attitude toward the truth abound in his testimony:[by Mr. Erwin]

Erwin: And that’s a letter you wrote to Mr. Grant in 1971?

Motta: Yes, sir.

Erwin: Do you recall telling him: ‘I am not concerned with the O.T.O. as such’?

Motta: Yes, sir.

Erwin: Was that true at the time?

Motta: Yes and no.

Erwin: Well, did you mean it?

Motta: It was an attitude that I assumed.

Erwin: Well, either you meant it or you didn’t mean it, Mr. Motta?

Motta: I did not mean it.”
[39A, 8-9]

xvi. Mr. Motta’s assertions are subjective and self-serving.
xvii. Regarding the doctrinal basis of the O.H.O. to conceal his or her identity, Mr. Motta did not offer this explanation in defense of his contradictory claims. “Second, and more importantly, it makes little difference to the Court whether Motta’s dissembling has a doctrinal basis or is simply the product of a dishonest mentality. In either case, the Court can assign very little weight to the testimony of an admitted dissembler.”
xviii. There are other claimants to Crowley’s literary legacy, such as Grady McMurtry, with his letters from Crowley (Defendant’s Exhibits 44, 45, 63, 64).
xvix. McMurtry returned to California in 1969 e.v. (from Washington, D.C., where he was employed by the Federal Government since 1961 e.v.), and found that the O.T.O. “had disintegrated.”
xx. McMurtry does not claim to be O.H.O., but is a de facto leader of a group in California who consider themselves the legitimate O.T.O.
xxi. James Wasserman was a former associate of Plaintiff Motta, an employee of Defendant Weiser, and a member of McMurtry’s group in California.
xxii. Wasserman testified that the California group had a membership of 750.
xxiii. “Motta incorporated his group as the Society Ordo Templi Orientis (S.O.T.O.) in Tennessee in 1978 (sic). Plaintiffs’ Exhibit 35. He claims a total membership of five. Tr. at 214.”
xxiv. McMurtry entered into a contract to publish the Thoth Tarot deck as “Caliph” in 1970 e.v.
xxv. In 1976 e.v., McMurtry obtained a Court order in Calaveras County, describing him as “duly constituted and authorized representative of the O.T.O.” and that he had the right to take possession of the library.
xxvi. The evidence indicates that there are still other claimants to leadership in the O.T.O.   “The Court need not decide whose claim is superior. The Court simply finds as a fact that Plaintiffs represent only one of several groups who claim to be legitimate successors to Aleister Crowley’s original O.T.O.”
xxvii. “The Court accordingly finds that the membership of the O.T.O. is indefinite and cannot be ascertained. The Court also finds that Plaintiff Motta has failed to prove that Karl Germer ever appointed him successor as O.H.O.”
[39B, 3-13]

9.2.3   Conclusions of Law – “Plaintiff Motta and S.O.T.O. do not own the Crowley copyrights in their individual capacities. The O.T.O. is not proven to be an unincorporated association having legal status to own property. Therefore, Plaintiffs cannot derive ownership of the copyrights from the O.T.O.”
[39B, 13]

9.2.4   Pending Motions – This part dealt with one pretrial motion and five post-trial motions. The pretrial motion was by the Defendant, and sought to amend his answer to the complaint. This motion had no bearing on the outcome. Plaintiffs filed four post-trial motions concerning copyright registrations, which were ruled moot by the decision. Plaintiff also filed a motion to amend the record, in order to introduce three documents (letters from Germer to Motta, McMurtry to Germer, and Germer to McMurtry). The Defendant objected on the grounds of authentication, and the motion was denied. The Court reviewed the proffered documents and concludes that they would not have altered the findings.
[39B, 14-15]

9.2.5   Opinion – After a recitation of the applicable case law, we come to the essence of the decision: “Even if the Court assumes (the evidence suggests otherwise) that Crowley was the leader of an identifiable association of persons who sought to execute his idea, that he expressly appointed Karl Germer to succeed him as leader, and that Germer also presided over an identifiable association of persons united by Crowley’s fraternal idea, the record before the Court falls far short of proving that, at the present time, or at the time of the alleged infringements, any particular group of human beings could lay exclusive claim to the O.T.O., as conceived of by Aleister Crowley when he devised his literary rights to the O.T.O.   The abstract idea of an O.T.O. persists, available to be appropriated by anyone so inclined, but no single group of persons having exclusive right to use of the O.T.O. name appears from this record to exist.”
[39B, 24]

And: “Accordingly, it is ORDERED that Judgment be entered in favor of Defendant.”
[39B, 26]

9.3 Denial of Legal Costs to Weiser

The following is taken verbatim from the reprint in Thelemic Magick Unexpurgated Commented, The Oriflamme, Vol. VI, No. 5. The italicized material below was written by Mr. Motta:

Before the appeal of the Maine decision went up to the Supreme Court (who refused to hear it, alleging a full docket), Donald Weiser had already asked the Maine court to make Motta and the O.T.O. pay his costs and attorney’s fees. His motion stated, among other things, that Motta had sued out of malice and “ethnic prejudice”: – meaning, anti-semitism. Here is a copy of the court decision:“Presently before the Court is the Motion for Award of Costs and Attorney’s Fees to Defendant Samuel Weiser, Inc., pursuant to…

“This motion stems from the disposition of an underlying copyright and trademark infringement action brought against Defendant Samuel Weiser, Inc. (‘Weiser’) by Plaintiffs Marcelo Ramos Motta (‘Motta’) and The Society Ordo Templi Orientis (‘SOTO’). In that original infringement action, the Court entered judgment in favor of Defendant. Plaintiffs appealed, and the First Circuit affirmed the judgment of this Court. As the prevailing party in the underlying action, Defendant now seeks an award of attorney’s fees and costs.

“In the previous infringement action, Plaintiffs alleged copyright ownership of the works of Aleister Crowley, an English mystic and the former leader of the cult known as Ordo Templi Orientis, and claimed infringement of such copyrights by Defendants.

“This Court entered judgment in favor of Defendant on the infringement action, concluding that Plaintiffs failed to satisfy the requirements of ownership of the Crowley copyrights either in their individual capacities or as members of the O.T.O.   Because Plaintiffs failed to prove either legal or beneficial ownership of the Crowley copyrights, the Court did not find it necessary to rule upon the second prong of an infringement action, namely, the question whether actual copying occurred.

“While the Defendant clearly has prevailed, courts generally have been more hesitant to award attorney’s fees to a victorious defendant than to a prevailing plaintiff. Such an award to a defendant will be granted if, in the court’s discretion, it ‘finds plaintiff’s suit to have been baseless, frivolous, unreasonable, or brought in bad faith.’

“As noted, this Court entered judgment in favor of Defendant in the infringement action based upon Plaintiff’s failure to establish valid ownership rights in the copyrighted materials of Crowley. Nevertheless, such a judgment need not warrant the conclusion that Plaintiff’s claims are without any arguable merit, particularly given the more rigorous standard applied by courts in evaluating a defendant’s claims for attorney’s fees.

“This Court rejected the assertion of Motta that he possesses ownership rights in the Crowley copyrights by virtue of his asserted capacity as Outer Head of the O.T.O.   Nevertheless, the evidence put forth by Plaintiffs on this point, while ultimately rejected, sufficed to establish a colorable claim to ownership under the more lenient standard accorded motions for defendant’s attorney’s fees. For instance, Plaintiff relied heavily upon a letter written to him by the widow of Karl Germer, the successor to Crowley, five days after Germer’s death. In that letter, Germer’s widow stated to Motta, ‘You are The Follower’. Coupled with this exhibit was Motta’s testimony on direct examination, in which he stated, ‘I am afraid that I must say that I am the Outer Head.’

“Plaintiff Motta introduced several other exhibits in support of his claim to be the successor to Crowley and Germer as Outer Head. While the Court ultimately rejected much of this evidence, and found unpersuasive his direct testimony and the letter from Mrs. Germer, Plaintiff nevertheless succeeded in asserting a colorable, nonfrivolous claim and did not act in bad faith in pursuing the action. While conflicting claims were made at trial as to the actual successors to Crowley and Germer, Plaintiff succeeded in putting forth an arguable meritorious claim that his ownership rights in the Crowley copyrights stemmed from his capacity as successor to the position of Outer Head. (Plaintiffs also asserted ownership rights as members and representatives of O.T.O., able to enforce property rights as tenants in common. Because the Court concludes that Plaintiffs established a colorable and nonfrivolous claim that Motta succeeded Germer as Outer Head of O.T.O., it need not address this alternative approach by Plaintiffs for proving ownership of the copyrights.)

“Defendant also alleged nine legal deficiencies in Plaintiff’s case. Defendant conceded, however, that the Court did not rule on any of these legal issues in disposing of the infringement action. Since such issues did not provide the basis for any aspect of the judgment in the infringement action, the Court will not now address them in assessing the reasonableness of Plaintiff’s claim.

“For the foregoing reasons, the Motion of Defendant Samuel Weiser, Inc. for Attorney’s Fees and Costs is hereby DENIED.
“Dated at Portland, Maine, this 9th day of April, 1986 (sic).”
[10, 269-271]

9.4   Analysis

Note that the decision on Weiser’s costs was made by Judge Carter in April 1986 e.v. (on the 9th, no less!), nearly two years after the original decision in May 1984 e.v.   Does the reader detect a remarkable change of tone between these two decisions? We can do no better at this juncture than offer Mr. Motta’s own analysis of this strange turnabout in Carter’s opinion of Mr. Motta. What follows continues directly from the quoted material in Section 9.3.5 above, with the italicized material also written by Mr. Motta:

Which means that poor Donald Weiser, who has made only about two million dollars so far off the O.T.O. copyrights, will either go begging to the upper Court or give up.But why this sudden somersault on the Maine Court’s part? It had stated in its opinion that “Motta is a dissembler”. So how come it suddenly decided Motta was in good faith after all, and had presented a “colorable claim”?

Very simply: Motta’s new lawyer added, to his reply to Weiser’s motions for attorney’s fees and costs, a copy of the letter from Mrs. Germer to Motta that Motta never received, and which had just been produced by the California gang on the course of the California trial.   {Mr. Motta is referring here to the “Follower to the Crown” letter. Cf. Section 7.5.} The objections by Weiser’s lawyers in Maine against Motta being the Outer Head of the O.T.O. gyrated around the fact that the expression “Follower” was “not part of O.T.O. parlance”. McMurtry, who appeared in Maine to testify on Weiser’s side, had been sitting on this letter for years. Had he, “in the Bonds of the Order”, presented it to help his “Thrice Illuminated and Thrice Illustrious Brother”,   {as McMurtry had addressed his one and only letter to Mr. Motta} quite possibly this would have changed the outcome of a case where Motta, for the first time, was forced to admit publicly that he was the Outer Head of the O.T.O. – for want of someone better.

The Maine judge realized that he had been had, and denied Weiser’s – if you will pardon the anti-semitic feeling – very Orthodox-Jew motion. Naturally, he could not go back and undo what had been done: he would lose face, and an American “judge”‘s face was more important than American Justice – or any other kind of “justice”. The gist of his decision actually is: “I have taken away Motta’s property in this country and the property under his care; but he is not such a bad guy after all.”

Fuck you, “judge”.
[10, 271-272]