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To: 
From: "Avaryce" 
Subject: More copyright stuff
Date: Tue, 30 May 2000 04:05:33 -0500

Do what thou wilt shall be the whole of the Law.

The Crowley Copyrights
Hymenaeus Beta X

Copyright (c) Ordo Templi Orientis
Reproduced with permission from The Magickal Link, Summer 1992 e.v. edition

     A Literary Estate is a strange institution; all great writers have one,
and they are a hybrid of business office, trust, registry and research
institute.  They are responsible for negotiating contracts with publishers,
dealing with permissions requests, designating and assisting editors,
collecting royalties and safeguarding the intellectual property which is any
literary estate's principal asset.  More importantly, they are responsible
for determining (or divining!) and wherever possible carrying out the
author's wishes posthumously.  They have a moral responsibility to the
author to ensure that his or her work is competently edited and
professionally published.
    The needs of professional publishers are comparatively simple.  Before
they will make the required investment to publish a copyrighted work by a
deceased author, they want a contract from his estate that will grant them
exclusive rights to the work, sometimes for a specified period of time, or
territory, or language.  Any estate usually assures a publisher that a) the
estate actually owns the publishing rights granted in the contract, and that
b) they will assist if necessary in the defence of those rights in case they
are infringed.  What publishers do not want is to become entangled in a
legal dispute over the rights.  It's bad for business when a competing
edition appears, which is why rights are usually granted exclusively.
    This is of course how it is supposed to work.  Crowley knew this, and
his intent was clear: the O.T.O. should own the Crowley copyrights after his
death.  It is also clear, at least to several Federal judges and the best
American and European copyright specialists we could find, that the O.T.O.
now owns them.  But things were not always so clear-cut, and from Karl
Germer's death in 1962 until Grady McMurtry's death in 1985, confusion had
the rule of law.
     In sorting out the mess, I have learned more about the intricacies of
international copyright law than is probably good for one.  Since many of
our memebers joined our ranks comparatively recently, it will be helpful to
delve into the history of the issue.  I should also add that this article is
written from memory, without help of our attorneys (and indeed probably
against their better council), without prejudice, in order to clear the air
in the Thelemic community on this extremely important issue.
     I would like to state at the outset that the O.T.O. has good relations
with Editorial EDAF, Knaur, New Falcon Publications, Inc., 93 Publishing
Ltd., Temple Press, Ltd., Teitan Press, Inc., Thelema Publications, Samuel
Weiser, Inc., and Urania Verlag.  All of these firms have shown
professionalism in their dealings with us, and all have produced fine
editions of Crowley's work.  What follows only concerns them insofar as it
deals with O.T.O.'s ability and willingness to protect their rights under
license from O.T.O.
    Much of what transpired at the time of Crowley's death has only become
clear relatively recently, though exhaustive and expensive legal research
here and in Europe.  Matters were greatly helped by the Order's recent
purchase of an important collection of executor's papers that turned up in a
Berkeley bookstore.  It is a tale worth telling, so I will digress briefly.
    Brother H.H. in Berkeley found the collection in a Berkeley bookstore
and immediately called me in New York, but as I was travelling on business
he left a message.  Unbeknownst to him I was just checking into the Berkeley
TravelLodge a mile or so away; I had impulsively decided to take a few days
holliday there.  When I called home and got his message, I realised the
importance of this collection immediately- we had unsuccessfully bid on it
at Sotheby's in London only a few months earlier.  I was four blocks from
the bookstore, and the next day, thank the Gods (and the G.T.G.) the Order
owned the collection.
    On Crowley's death, no one disputed that the O.T.O. under Karl Germer
was the beneficiary of the will, least of all the executors Louis Wilkinson,
John Symonds and Frieda Harris.  They sorted, packed, and shipped his
literary manuscripts and books to Germer in New York, who kindly allowed
Symonds to keep material longer than might otherwise have so that Symonds
could complete his "life" of Crowley-The Great Beast.  Once this was
accomplished, Germer considered the executors discharged of their fiduciary
duties.  The executor's correspondance and business records show that
Crowley's affairs were settled, the papers shipped to America, the executors
reimbursed their expenses, and the estate bank accounts closed.  Louis
Wilkinson did most of the work, and he served his old friend faithfully;
John Symonds is another story.
    Under English Trust law there is a type of executor in whom the property
vests, i.e. the executor actually owns it in trust, and can even will the
trusteeship to his heirs and assigns.  Crowley's will did not create this
type of trust in connection with the copyrights.  Trust law only entered in
when Crowley disposed of his tangible literary effects:

    I GIVE AND BEQUEATH my books and writings and other literary effects so
collected to my Literary Executors free of all death duties ON TRUST that
they shall hand the same to the Grand Treasurer General of the Ordo Templi
Orientis (Order of the Temple of the East) at 260 West  72nd Street New York
City with a request that the collection shall be for the absolute use and
benefit of said Order and I DECLARE that the receipt of the Grand Treasurer
General of the said  Order shall be a sufficient discharge to my Executors.

    Everyone seems to agree (for a change) that this part of the will was
executed.
    Despite that John Symonds usually claims, he never held the Crowley
copyrights in trust.  The will gives the copyrights directly to the O.T.O.,
as the will plainly states:

     I bequeath free of all death duties all the copyrights in my books and
writings whatsoever and  wheresoever over which at the date of my death I
may have any power of disposition to the Ordo  Templi Orientis aforesaid
(other than those copyrights which shall already be the property of the
Order) for the absolute use and benefit of said Order AND I DECLARE that the
receipt of the  Grand Treasurer General of the said Order shall be a
sufficient discharge to my Literary executors.

    Crowley specified "other than those copyrights that shall already be the
property of the Order" because he claimed to have assigned his copyrights to
the Order around 1912, at the same time he donated Boleskine House (plus a
morgage or two).  He reaffirmed this in his Confessions, and even notified
Germer of the Scottish solicitor that had the relevant papers.  But as these
records are now long lost, this basis for ownership is unprovable.  (We did
find the deed to O.T.O. for Boleskine House in the process of looking.)
    Germer did not need the continued services of the executors, and our
files show that in the 1950s and 1960s the O.T.O. dealt directly with it's
publishers in the U.S. and England concerning publishing contracts and
royalties.
 After Germer's death the question became one of who, in the name of O.T.O.
could claim legal title to the copyrights.  Who was Germer's heir as O.H.O.?
     I will not here recount how Grady McMurtry, relying on his position as
a Grand Lodge officer and his written authorizations from Crowley, resolved
this question with the 1985 California decision; it is reasonably well
documented elsewhere (see Equinox III(10)).  It is interesting to note
however that the case dealt directly with the substance of Crowley's
legacy-copyrights and archives on one hand, and the devolution of the office
of Head of the Order on the other.  In other words, just as one can will
copyrights and trace their ownership, on can (as O.H.O.) will the succession
(se the 1917 O.T.O. Constitution); in ancient law this practice was termed
tanistry.  To simplify a great deal, the judge in the California case found
that Germer failed to designate a successor, and relied on McMurtry's senior
position as a Grand Lodge officer (as evidenced by Crowley's authorizations
and letters) in reaching his decision that McMurtry was O.H.O.
     Germer's death was kept from senior O.T.O. officials after his death.
McMurtry's colleague Frederic Mellinger only learned of it when Sascha
Germer insisted that Hermann Metzger's Swiss group contact mellinger to
obtain his position (as co-executor of Germer's will)  on Metzger's 1963
"election" to O.H.O. (This backfired badly when Mellinger denounced Metzger,
but that is another story.)  McMurtry didn't learn of Germer's death until
the late 1960's.
     When an heir did not immediately take control of Germer's affairs,
various parties desirous of issuing Crowley's work arose.  A few were
Thelemites, others were sympathisers with publishing experience who wanted
new material available, and some were interested in making money.
     Their approaches to the copyright problems differed.  Some made a
calculated gamble that an assertion of ownership would go unchallenged;
after all, in signing a contract with a commercial publisher, an editor
represents that he either owns the work, or has permission from those who
do.  Others simply put ©O.T.O. on the books, and waited to see who would
show up with the neccessary credentials.  Still others (like Israel
Regardie) knew the most legitimate players involved in the ownership issue
personally, and obtained their blessings to proceed until matters were
sorted out (although he died before this was achieved, his estate kept his
promise and arranged for contracts with O.T.O.)  Still other publishers
concentrated on reprinting material that had fallen into the public domain,
which could happen in the U.S. with material published abroad due to
peculiarities in our old copyright laws (Particularly the old "manufacturing
clause.")
     Around 1968-9 Crowley's literary executor John Symonds joined with
expelled O.T.O. member Kenneth Grant in claiming the copyrights.  Whatever
else Symonds may be (and he is a clever novelist), he is not a solicitor.
He apparently felt that he could deal in the copyrights by claiming that
Germer never discharged him as the executor, glossing over the fact that he
the fact that he had never held the copyrights in trust, as shown above.
But, assuming we are following his reasoning, he apparently felt the need
for an O.T.O. in whose name he would act, and Kenneth grant accordingly
revived the abberant psuedo-O.T.O. that had caused his expulsion by Germer
in 1955.  he had closed it down in 1962, pobably not coincidentally the year
Germer died.
      Israel Regardie, relying on the advice of his old friend gerald yorke,
began issuing new Crowley in the late 1960s, and by the early to mid-1970s
several British editors produced new editions of Crowley as well.  Not
surprisingly, Symonds never pursued them in the courts, and it was generally
known that McMurtry-by that time the sole surviving member of Grand Lodge
under Crowley and Germer-was generally delighted that Crowley material was
coming out.
 Having discussed these issues with him at length, I can reliably say that
at this time Grady McMurtry believed that four facts were clear:
  a) the O.T.O. owned the copyrights;
  b) Germer died intestate and left a legal mess behind;
  c) he would need a lot of money to prove (a) by clearing up (b); and
  d) if Crowley went out of print entirely, he would never find and teach
new students with whom to revive the O.T.O.
      In other words, the fact that Crowley material was appearing left him
free to concentrate on the magical and organizational work of reconstituting
the Order.  Once all that was done, then perhaps it could afford the time
and expense of clearing up the copyrights.  If money had been Grady's
primary motivation he would have had a very different order of priorities.
      Matters became complicated in the late 1970s when Germer's Brazilian A
.'.A.'. student Marcelo Motta created his "S.O.T.O." purely for the purpose
of claiming the copyrights.  Motta had stated that he had no interest in
O.T.O. matters until learning that the Order owned these.  That he could not
prove his claim to membership in O.T.O. no more deterred Motta than Grant's
expulsion hindered him.
      Marcelo Motta was an enigma, with several facets to his character.  On
the one hand he was a legitimate A.'.A.'. member who had (at least in the
mid-1970s) attracted and trained serious students.  I was one, but within
months of commencing work with Motta, he published his commentary to Liber
AL and I cut contact with him (cf. the 1925 "short" Comment).  Before long
he started claiming O.T.O. leadership and attacking other Thelemites,
editorially altering Crowley's works, and in other ways behaving like a
model center of pestilence.
      Motta grew ever more paranoid and mercurial, and by the early 1980s
had become a dangerous man.  Some of his best students withdrew from active
involvement with him; others hung on in the hope that they could help the
situation to improve.  By 1980 the type of new member his polemic tended to
attract was prone to unblinking fanaticism-never having known the group in
healthier days.  One member in England conspired to firebomb the warehouses
of the old and distinguished British publisher Routledge & Kegan Paul simply
because Motta was unhappy with them.  (He nearly destroyed the wrong
warehouse, and died in jail.)  Death plots against other "malefactors" were
rife, a thankfully rare type of cult behavior familiar to criminologists.
      All of this is sadly a part of Motta's legacy among some of the
self-proclaimed "S.O.T.O." groups that have recrudesced after his death, led
by latecomers who only knew Motta at his worst.  (He had a better side at
one time; I count Motta's best students and organizers as close colleagues.)
      Motta them instituted a bitterly-faught lawsuit against Samuel Weiser,
Inc., who turned to the O.T.O. for assistance with the case.  Grady
McMurtry, Fra. A.V. and myself assisted Weiser during the trial in Federal
District Court in Maine.
      The O.T.O. was not a party to the S.O.T.O.-Weiser case as either
plaintiff or defendant, and the strategy was simply to cast doubt on Motta's
claim to O.T.O. leadership, and give tesimony that Weiser had Grady's
blessings.  It was not our place to use Weiser's case (and money, as he was
paying the defense costs) to mount a serious attempt to prove that we were
the true O.T.O.; we had only prepared for the case for a few weeks, and
McMurtry testified only briefly.  Happily, the judge found for Weiser and
against S.O.T.O.  But the judge's decision basically stated that based on
the evidence and testimony he had reviewed, the O.T.O. was too diffuse and
disorganized at Crowley's death to be able to benefit from Crowley's bequest
of the copyrights.  We learned valuable legal lessons from this case which
helped prepare us for our own case against Motta.  We even used his presence
in the Maine courtroom to serve him with the papers.
       In the 1960s and 1970s Israel Regardie, Kenneth Anger and myself had
all published Crowley material and had been libelled by Motta as "pirates"
(or worse) for our trouble.  We joined with McMurtry to bring a suit against
Motta and S.O.T.O. in Federal Court in California.  For reasons of distance
and expense Regardie, Anger, and I dropped out, while additional plantiffs
(mostly northern California O.T.O. members) joined it.
       Ironically, Motta helped unite most Thelemites in North America
behind Grady McMurtry.  We were greatly assisted in the case by the the
evidence and testimony of a longtime student of Motta's, Martin P. Starr.
Agapé Lodge members under Crowley and Germer were also plantiffs, and gave
testimony and produced crucial evidence to prove that the O.T.O. under
Crowley, Germer, and McMurtry was a viable unincorporated association that
transacted business, kept records and minutes and had a definite membership,
etc.  In other words, it met the test for legal existence, something denied
it by the Maine decision.
      The judge in the California case knew the Maine case very well through
the findings, decisions, and court transcripts, and although he obviously
disagreed with the Maine case's conclusions concerning the existence of
O.T.O., he did use it to stop Motta (through a legal principle called
collateral estoppel) from seeking to retry certain issues settled against
him.
      Some of our critics assert that the Maine decision is the law in the
Eastern U.S. while the California case only applies in the West.  We
respectfully suggest they attend a good law school.  Why would Weiser, one
of the most professional publishing firms publishing Crowley, bother with
contracts with O.T.O. if their own favorable Maine decision determined the
status of the Crowley copyrights?  They don't call it Federal Court for
nothing.
      One final but significant wrinkle in the Crowley copyright issue is
the fact that Crowley died a bankrupt, which is a very different matter
under English law than what we call bankruptcy here.  In effect, all assets
over which he had control, tangible and intellectual, including those he
would create or aquire, became vested in the British government until he
paid his debts to discharge himself.  The British government had the right
to dispose of any assets such as copyrights, to expedite the process of
ensuring that his creditors were paid.
      Crowley's bankruptcy raises interesting questions relating to
Crowley's will, all of which have been intensely studied by the Order's
legal experts here and in England.  It is really a shame that the bankruptcy
was not discharged by O.T.O. long ago; Germer was advised not to bother by
Frieda Harris, who said something like "we English expect our great writers
to be bankrupts."
       It has been reported in the British publishing trade press recently
that Crowley's bankruptcy has been settled.  Legal propriety makes it
inadvisable for us to either confirm or deny this report.
      We can say, however, that we remain quite confident that we own the
copyrights.
      Many people appear confused about the term of Crowley's copyrights.
Since Crowley was a British subject, his works fall under the international
Berne copyright convention (to which the U.S. is now a signatory).  However,
certain aspects od the Berne convention (such as length of term) are
governed by the peculiarities of the copyright law of the country of
nationality.  For example, under English law the term of copyright is 50
years from the date of authorized publication, even if the publication
occurs years after the author's death.  This term, under the Berne
convention, applies worldwide in all signatory countries, now including the
U.S.  Had Crowley been an American, all of his published and unpublished
copyrights would expire in 1997.
      Many of Crowley's published works are in the public domain.  These
include any books or articles before July 1912.  (when the U.K. adopted a
new Copyright Act), including the first 7 numbers of The Equinox.  Also,
some (but not all) works published publicly (as opposed to privately) in
Europe after 1912 are in the public domain in the U.S. only, due to a
peculiarity in the old U.S. copyright law (the "manufacturing clause").
These are still being studied by the O.T.O.'s legal experts.
      The O.T.O. was intended to control Crowley's copyrights for reasons
that transcend simple financial endowment.  We were to ensure that his works
were constantly availible in well-edited and well-translated editions, kept
in print by respected professional publishers.  We do this now in the United
States and in parts of Europe, and are now taking all necessary steps to
regularize the estate throughout Europe and Japan.  We always try to do this
through negotiation in good faith and settlement, but this doesn't always
work with some people.
       Copyrights and wills are entirely consonant with Thelema as Crowley
taught it.  My personal enthusiasm for (say) Norman O. Brown or Joseph
Campbell does not entitle me to infringe their rights by publishing their
works, either for motives of religious conviction or profit.  When people
suggest that by virtue of being a Thelemite they have an inalienable right
to publish Crowley.  I have to wonder if they haven't somehow missed the
point.
       When people make a business out of publishing Crowley, as some do,
and then criticize the O.T.O. for expecting permissions, contracts and
royalties, there is a double standard at work.  They aren't giving their
books away.  Why should we give away publishing right?  When they run the
Thelemic banner up the flagpole, which as we know all too well can justify
anything in the right hands, it becomes sheer hypocrisy.
        Unlike Symonds & Grant, Motta, Bouchet (in France) or Eschner (in
Germany), when I edit or publish Crowley's work all of the royalties go to
the O.T.O. as he intended.  I feel privileged to work with the material,
which is reward enough.
        Crowley would certainly have deplored what occured in the 1970s and
early 1980s, with putative "successors" using his works as literary
soap-boxes for putting their personal spin on Thelemic doctrine.  He would
certainly have condemned those who pocket the revenue in the name of one
"O.T.O." or another without even the pretense of giving benefit to its
memebership.
         I wrote this article because I felt that the O.T.O. membership
deserved an explanation for the large sums we have expended in legal
research and legal actions in connection with the copyrights.
        We're also heading into a new phase of our work.  Things will get
messy and expensive for some years yet, and we will be making the usual
appeals for the Legal Fund.  But I'm convinced that it is something we must
do.  Crowley's intent has be thwarted for far too long.  He dedicated his
life to helping us do our wills.  The least we can do is help him do his;
that is, after all, why they are called wills.

Love is the law, love under will.

EOF