UNITED STATES DISTRICT COURT
                            DISTRICT OF MAINE
 MARCELO R. MOTTA, ET AL., )
                           )
                Plaintiffs )
                           )
     v.                    )                    MOTION TO STRIKE
                           )                    ----------------
 SAMUEL WEISER, INC.,      )
                           )
                 Defendant )
Defendant Samuel Weiser. Inc. moves this Honorable Court to strike, under
Local Rule 1 (b), plaintiffs' motion to amend the record for failure to comply
with
F.R.Civ.P. 43 (e) and Local Rule 19.
DATED: September 24, 1984.
                                     Respectfully submitted,
                                     -----------------------------------
                                     James R. Erwin. Esquire
                                     STRATER, HANCOCK & ERWIN,, P.A.
                                     4A Woodbridge Road
                                     P.O. Box 69
                                     York. Maine 03909
                                     ATTORNEY FOR DEFENDANT
                                                              (end of page)
                         UNITED STATES DISTRICT COURT
                              DISTRICT OF MAINE
 MARCELO RAMOS MOTTA and THE SOCIETY  )
 ORDO TEMPLI ORIENTIS IN AMERICA,     )
                                      )
                       Plaintiffs     )
                                      )
      v.                              )               CIVIL NO. 81-0459 P
                                      )
 SAMUEL WEISER, INC.,                 )
                                      )
                       Defendant      )

                      JUDGMENT ON DECISION BY THE COURT
                      ---------------------------------
This action came on for trial before the Court, Honorable Gene Carter, District
Judge, presiding, and the issues having been duly tried and a decision having
been rendered,
IT IS HEREBY ADJUDGED pursuant to Findings of Fact, Conclusion of Law and
Opinion dated December 6, 1984, that Plaintiffs, Marcelo Ramos Motta and The
Society Ordo Templi Orientis in America, take nothing, and that Judgment is
entered in favor of Defendant, Samuel Weiser, Inc.
Dated: December 6, 1984
                                     Clerk, United States District Court
                                                                (end of page)

                         UNITED STATES DISTRICT COURT
                               DISTRICT OF MAINE
 MARCELOS RAMOS MOTTA           )
 and                            )
 SOCIETY ORDO TEMPLI ORIENTIS,  )
                                )
              Plaintiffs        )               Civil No. 81-0459-P
                                )
           v.                   )
                                )
 SAMUEL WEISER, INC.,           )
                                )
               Defendant        )


               FINDINGS OF FACT, CONCLUSIONS OF LAW AND OPINION
               ------------------------------------------------
 CARTER, District Judge
                                I. Introduction
                                   ------------
This is an action for copyright and trademark infringement. The center of this
controversy is the literary legacy of Aleister Crowley, an English citizen who
died in 1947. Crowley was the dominant figure in the Ordo Templi Orientis
(OTO), a quasi-Masonic secret fraternity that was founded near the beginning of
the twentieth century in Germany. Crowley wrote prolifically during his
lifetime, and some of these writings have been published by the defendant in
this case. Upon his death, Crowley devised his literary remains to the Ordo
Templi Orientis.
Plaintiffs claim ownership of the Crowley copyrights and allege that these
copyrights were infringed by Defendant. Plaintiff Kotta is Supervisor General
of the
                                                              (end of page 1)
Society Ordo Templi Orientis (SOTO), a Tennesee corporation that was organized
by him in 1978. Plaintiffs allege that the SOTO is legally cognizable as the
successor to the OTO to which Crowley willed the rights to his literary
remains. Motta alleges that he is the successor to Karl Germer, Crowley's
successor. as "Outer Head of the Order" (OHO), or leader, of the OTO.
The action was tried to the Court in a trial that lasted five days. A full
transcript of the testimony, was prepared, and the parties have submitted
post-trial briefs and proposed findings of fact and conclusions of law. 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.
In making the following findings of facts the Court found it unnecessary to
attempt to penetrate the mystical nature and occult practices of the OTO. It is
sufficient to observe that OTO initiates aspire to pass through a series of
mystical grades by taking part in secret rituals. The parties agree that the
supreme authority within the organization is the Outer Head of the Order, and
that Crowley occupied this position until he died. The prose, poetry and
rituals authored by Crowley form the literary nucleus of the belief system of
OTO devotees, and they have proven to have substantial value on the occult book
market.
                                                            (end of page 2)

                             II. Findings of Fact
                                 ----------------
The parties agree that the highest position of authority in the OTO, as
conceived of and practiced by Aleister Crowley, is the Outer Head of the Order,
or OHO. The parties agree that Crowley was the OHO of the OTO by
self-designation until he died in 1947. Crowley left a will in which he devised
"all the copyrights in my books and writings whatsoever and wheresoever
including any copyrights over which at the date of my death I may have power of
disposition to the Ordo Templi Orientis." Plaintiff's Exhibit 12 (a). Neither
party contests the validity or legal effect of the will, which was probated in
England in 1949. Id.
Plaintiffs contend and Defendant does not contest that Karl Germer succeeded
Crowley as OHO of the OTO, Germer was a resident of New York City at the time
he acceded to the position of OHO and later moved to California. Germer
obtained custody of Crowley's extant literary remains, and was involved in
publishing several of Crowley's writings. Germer died in California in 1962. At
the time of his death, he had not expressly named a successor as OHO of the
OTO.
Plaintiff Motta, who spent his childhood in Brazil and speaks Portuguese as his
native language, currently has a visa to reside in the United States. Tr. at
24, 25. Motta was initiated into the OTO by Germer in California in 1955 or
1956. Tr. at 39-40. Motta corresponded with Germer, often regarding OTO
matters, regularly until Germer's death.
                                                               (end of page 3)
Motta also visited with Germer at least three times. Motta testified that he
spent a number of years in Brazil working on behalf of the OTO and another
organization by the name of the "A.A.," described by Motta as "an occult order
for mystical occult training." Tr. at 97; see also Tr. at 209-211.
Plaintiffs introduced a number of exhibits which they claim prove that Motta is
Germer's successor as OHO of the OTO. In 1956 Germer wrote to Motta in Brazil
indicating, "I am willing to give you a document as my representative for a
limited time, but I would have to prepare you for it!" Plaintiffs' Exhibit 7
(emphasis added). This statement cannot constitute direct evidence supporting
Motta's allegation that Germer appointed him OHO, First, Germer intended only
to appoint Motta his representative, not his successor as OHO, Second, the
context of the statement indicates that Motta's authority was to be limited to
Brazil. Third, the representation was to be granted only for a limited time.
Finally, the representation was-conditioned upon Germer's preparing Motta for
it, and it was not proven that any such document was ever given by Germer to
Motta.
In 1962 Germer wrote to Motta regarding a collection of 'Crowleiana':
    Please study this matter carefully and let me soon know if you are
    interested in buying the collection. Some years ago I suggested to
    Estelle to sell to the Sidney Library, from the consideration that that
    [sic] Australia is far enough distant from the political turmoil to
    assume that these valuable Crowleiana might survive a holocaust.
                                                               (end of page 4)
    South America also applies. Needless to say that I would like nothing
    better than this stuff to be in your hands, provided you can keep its
    possession secret and safe.
 Plaintiffs' Exhibit 13. In 1961, Germer wrote to Motta:
    I can see that you have been tentatively admitted into what I may call
    the thelemic chain; it will take long, patients persistent work to
    prove yourself. In any case: YOUR WORK AT THIS PHASE is in BRAZIL, and
    nowhere else. It is demanded that you learn to stand on your own feet
    with courage and with confidence. It is very possible, even probable,
    that the call is for you to prepapre [sic] the ground for the
    establishment of a H.Q. somewhere there where ultimately — before
    "Armageddon" - the archives can be moved. This may be a year or more
    off.
Plaintiffs' Exhibit 14. No inference that Germer designated Motta his successor
may be drawn from these statements. They indicate only that Germer tentatively
perceived Motta to be a desirable purchaser of the Crowley collection because
of Mottals residence in South America, "distant from the political turmoil."
Moreover, the evidence indicates that Germer never effectuated his
speculations.
Plaintiff Motta relies upon the preceding references as evidence that he is
Germer's successor. He relies most heavily, however, upon a letter written to
him five days after Germer's death by Germer's widow. Mrs. Germer stated in
pertinent part:
   Our beloved Master is Dead
   Re succumbed Oct. 25, 8:55 P.M. under horrifying circumstances.
   You are The Follower
   Please take it from me, as he died in my Arms and it was his last Wish!
   Who the Heir of the Library is, I do not know, up to now.
                                                            (end of page 5)
Plaintiffs' Exhibit 16 (b) (emphasis in last sentence added)
On January 26. 1963. Mrs. Germer wrote to Motta:
   But forget about me, You are Young, You are the Future of the Work, I
   did not believe when Kari said: It takes another 10 Years to Make
   Motta the Heir! But Spiritually you are his Heir! you have to work on
   in Brazil, if You are stubborn You are not stubborn to me, You fight
   the Work!
Plaintiffs' Exhibit 19 (b) (emphasis in original).
 The "You are the Follower" statement does little to substantiate
 Mottals claim to be Germer's successor as OHO of the OTO, First, the
 evidence of record indicates that the word "follower" does not have any
 particular meaning in OTO parlance. 1* Motta now interprets Mrs. Germer's
 statement to mean that he is OHO, but there is no evidence that
--------------
 *1: Plaintiffs argue to the contrary in their reply brief:
 Both of defendants. witnesses who supported that proposition [that "the
 follower" has no meaning in OTO parlance] were probably not aware of
 Verse 76t Book 2 of THE BOOK OF THE LAW which reads as follows:
    What meaneth this, o prophet? Thou knowest not; nor shalt thou know
    ever. There cometh one to follow thee: he shall expound it. But
    remember o chosen one, to be me; to follow the love of Nu in the
    star-lit heaven; to look forth upon men, to tell them this glad word.
 (Emphasis added.) This passage was not introduced as substantive
 evidence at trial and has not been so admitted by this Court. Even if
 the Court were to consider it, the passage does not support Plaintiffs'
 argument that "the follower" has the special meaning which plaintiffs
 attempt to ascribe to it.
                                                         (end of page 6)
he ever so interpreted it prior to this trial. Second, whatever the statement
might mean, the Court can accord it very little weight. It is second generation
hearsay, admitted as the dying declaration of Germer. see Fed. R. Evid, 804
(b)(2), and the excited utterance of Mrs. Germer. See Rule 803 (2), Third, Mrs.
Germer expressly stated that she did not know who the heir to the library was.
Moreovere the diary entries of Mrs. Germer written prior to and at the time of
her husband's death and other evidence demonstrate that her perception of
reality at that time had deteriorated, and her credibility is subject to
profound question.
Under direct examination, when asked what position he holds in the OTO, Motta
stated: "I am afraid that I must say that I am the Outer Head." Tr. at 119. On
crossexamination. Motta said. "I regret to have to repeat that I am now the
Outer Head of the order." Tr. at 133. Motta alleged at trial that he became the
Outer Head upon Germer's death in 1962, and he bases his claim upon Mrs.
Germer's statement. "You are the Follower." Tr. at 134. Some circumstantial
support for Motta's claim is provided by 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.
 On the other hand, substantial evidence was introduced which tends to
 belie Mottals claim of status within the OTO. Although Motta claimed at
 trial to have assumed the position
                                                          (end of page 7
of OHO upon Germer's death in 1962, he stated a number of times subsequent to
Germer's death to several different people that he was not the OHO, Tr. at 134,
135, 147; Defendant's Exhibits 18. 52. Motta stated at least twice that he was
not eligible to be OHO, Defendant's Exhibits 52. 18, and at least twice that it
was necessary to elect a new OHO to succeed Germer. Defendant's Exhibit 18.
Although Mottals interest in the writings of Crowley is not to be doubted, his
professed interest in the OTO as an organization is not supported by the
record. He stated at least twice that he was never very interested in the OTO.
Defendant's Exhibit 52, and Tr. at 192. He stated several times that he
preferred the A.A., see supra at 4. to the OTO. Defendant's Exhibits 71 (1957),
72 (1961), 60 (1971), 52 (1974).
Also, the Court is not persuaded of Plaintiff Mottals credibility on the
central question regarding his status in the OTO, and, therefore, can accord
very little weight to his testimony. His testimony and Correspondence are rife
with contradictions. The contradictory statements about his claim to be OHO and
his interest in the OTO are cited above. Examples of Mottals peculiar attitude
toward the truth abound in his testimony:
   [by Kr. Erwin]
   Q And that's a letter you wrote to Mr. Grant in 1971?
   A Yes, air.
   Q Do you recall telling him: "I an not concerned with the OTO as such"?
                                                        (end of page 8)
   A Yes,, sir.
   Q Was that true at the time?
   A Yes and no.
   Q Well, did you mean it?
   A It was an attitude that I assumed.
   Q Well, either you meant it or you didn't mean it, Mr. Motta?
   A I did not mean it.
Tr. at 166-67.
Motta explained his inconsistency about his claim'to be OHO as follows:
   Sir, I have been answering your questions and apparently I have not
   been calling myself a liar here. I am not interested in power or titles
   and I am much more interested in seeing the OTO on its feet working
   harmoniously together constructively than to be called the Outer Head
   of the OTO. I have avoided calling myself the Outer Head of the OTO
   because I know lots of people aspire to that title and if one of them
   could have shown to me that he or she is in a position right now to
   assume It, I would gladly let them have it. So that's why I have
   avoided using the words Outer Head of the order in relationship to
   myself, but because I truly would rather be doing something else, but I
   have promises to keep and miles to go before I sleep.
 Tr. at 169. The Court rejects this explanation because it was not
 proven that Motta laid claim to the title at any time between Germer's
 death in 1962 and the commencement of this lawsuit. Furthermore. Motta
 advances no objective criteria by which his assertion that no one else
 is eligible to
                                                    (end of page 9)
be OHO may be evaluated. Rather, his claim is based solely on his own
subjective, self-serving assertions.
Plaintiffs' explanation in their post-trial brief for the numerous
contradictions in Mottals testimony and correspondence is that "basic doctrine
of the OTO requires people in leadership positions to dissemble about those
subjects." Reply Brief of Plaintiffs at 6. First, it is strange that Plaintiff
Motta, who was repeatedly confronted with these contradictions upon
cross-examination and given the opportunity to explain them on redirect, did
not offer this as an explanation at trial. Second, and more importantly, it
makes little difference to the Court whether Mottals dissembling has a
doctrinal basis or is simply the product of a dishonest mentality. In either
cases the Court can assign very little weight to the testimony of an admitted
dissembler.
Testimonial and documentary evidence reveals that Motta is not the only
claimant to Crowley's literary legacy. Grady McMurtry is a California resident
who met Crowley when he was serving in Europe at the conclusion of World War
II. The evidence includes several letters from Crowley to McMurtry indicating
Crowley's belief that McMurtry was a possible successor to Germer. Defendant's
Exhibits 44. 45, 63, 64. Germer himself recognized that McMurtry held a
preeminent historical status in the OTO several times during the 1940s and the
1950s. See Defendant's Exhibits 66, 67, 68, 69.
                                                    (end of page 10
At some point prior to Germer's death, McMurtry and Germer had a falling out.
McMurtry left California in 1961 and went to Washington, D.C. to work for the
Federal Government. Tr. at 510. He returned to California in 1969. Tr. at 511.
Upon his return, McMurtry found that the OTO organization "had disintegrated."
Tr. at 513. McMurtry does not claim to be OHO, but he is the de facto leader of
a group of California devotees of Crowley who consider themselves the
legitimate OTO. McMurtry's organization is incorporated in California. Tr. at
508.
James Wasserman, a member of the California incarnation of the OTO, testified
that the California-based organization has "approximately 750 members in active
standing worldwide." Tr. at 245. Wasserman was a former associate of Plaintiff
Motta and at one time had a power of attorney from Motta to act on his behalf
in order to obtain access to the Crowley library. Tr. at 216. Wasserman was
also at one time an employee of Defendant Samuel Weisert Inc. Tr. at 217. While
in California in 1976 representing Motta and Defendant, Wasserman was initiated
into the OTO by McMurtry. Tr. at 236. Wasserman testified that at that time
Motta was not attempting to run any kind of OTO in the United States. Tr. at
235.*
Motta incorporated his group as the Society Ordo Templi Orientis (SOTO) in
Tennessee in 1978. Plaintiffs' Exhibit 35. He claims a total membership of
five. Tr. at 214.
                                                             (end of page 11)
McMurtry entered into a contract to publish the "Thoth Tarot Cards" as "caliph"
of the OTO in 1970. Defendant's Exhibit 47. In 1976 Mcmurtry obtained an order
in the Superior Court of the State of California which stated that McMurtry was
the "duly constituted and authorized representative of the Ordo Templi
Orientis" and that he therefore had the right of possession of OTO literary
materials that had been left by Karl Germer. Defendant's Exhibit 59. The
evidence is conflicting about whether Plaintiff Motta, received notice of the
proceeding. It is unnecessary-to resolve this factual issue; the Court accepts
the Court Order only as circumstantial evidence of McMurtry's state of mind
with respect to his status in the OTO.
The evidence demonstrates that there are still other possible claimants to the
OTO legacy. These include a group in Switzerland led by a Joseph Metzger,
Defendant's Exhibits 20, 50, a group in England led by a Kenneth Grant.
Defendant's Exhibit 5, and a former associate of Crowley by the name of
Frederick Mellinger. Plaintiffs' Exhibits 75, 76. 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 OTO.
There is no evidence indicating that the OTO was ever incorporated during the
lifetime of either Crowley or Germer. Crowley's will left his literary remains
to the "Ordo Templi Orientis," He named two literary executors;
                                                             (end of page 12)
Louis Umfraville Wilkinson and John Symonds, both English citizens. Their role,
potentially significant, in the dispositi on of the copyrights is not addressed
by either party. Crowley's will contains no statement concerning the membership
or geographical distribution of the Ordo Templi Orientis to which he devised
his copyrights. The evidence presented does not include any externally
verifiable criteria for membership in the OTO or for devolution of the title of
OHO at the time Crowley died, at the time Germer died, or today. The Court
accordingly finds that the membership of the OTO 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 OHO.

                            III. Conclusions of Law
                                 ------------------
Plaintiff Motta and SOTO do not own the Crowley copyrights in their individual
capacities.
The OTO is not proven to be an unincorporated association having legal status
to own property. Therefore, Plaintiffs cannot derive ownership of the
copyrights from the OTO.
                                                    (end of page 13)

                              IV. Pending Motions
                                  ---------------
One pretrial motion and five post-trial motions remain to be decided in this
case.
Defendant moved to amend its answer on February 27, l984, two days before trial
began. Defendant sought to add ten "affirmative defenses" to its answer. The
Court permitted the amendments on the condition that:
   Plaintiff is not precluded from arguing in respect to any affirmative
   defense pleaded therein that such defense has been waived under the
   Federal Rules of Civil Procedure. Rule 12(b) and (h), or by other
   operative principle of law by failure to previously plead such defense
   as required by those rules of law.
Tr. at 12. Because the Court has determined that the issue of ownership, on
which Plaintiffs have the burden of proof, is diapositive in this case, it is
unnecessary for the Court to reach the question whether Defendant's Answer
should be amended to include "true" affirmative defenses.
Plaintiffs have filed four post-trial motions concorning registration of
various copyrights with the United States Copyright office: a Motion to Amend
Complaint, filed July 3, 1984; a Motion to Amend Record, filed July 20, 1984; a
Motion to Amend Record, filed July 26, 1984; and a Motion to Amend Record,
filed September 17i 1984. Because the Court has determined that Plaintiffs have
failed to sustain their burden of proving ownership, the issues posed by these
motions respecting registration of specific copyrights are moot and need not be
reached by the Court.
                                                        (end of page 14)
Plaintiffs have also moved to amend the record, on September 20, 1984, to
Introduce three documents, alleged to be a letter from Germer to Motta, a
letter from McMurtry to Germer, and a letter from Germer to McMurtry. Defendant
objected on the stated grounds, inter alia, that the documents have not been
authenticated and no foundation for their admissibility has been provided.
Defendant's objection is well-founded, and, accordingly, the Motion to Amend
Record shall be denied. The Court notes that it has reviewed the proffered
documents and that, even if they were to be admitted they would not alter the
findings contained in this decision.
                                                        (end of page 15)

                                 V. Opinion*2
                                    ---------
                                      A.
                                      --
Plaintiff Motta does not claim personal ownership of the Crowley copyrights.
Rather, he contends that his ownership rights are derived from his capacity as
OHO or member of the OTO. Plaintiffs' Brief at 8-10.
Plaintiffs contend, however, that Plaintiff SOTO is the owner of the Crowley
copyrights. Plaintiffs' Brief at 10. SOTO was incorporated by Motta in Tennesee
in 1978; Motta claims a nationwide membership of five individuals. The Court
has found that other persons with viable claims to OTO membership are not
members of Plaintiff SOTO. Any claim by
----------------
*2: This case would present difficult questions as to choice of law with
respect to the issue of ownership were there any conflict in the law of the
interested jurisdictions. First, there is the issue of whether state or federal
law applies to the issue of ownership. There is authority supporting the view
that state law should apply to issues respecting ownership in actions brought
under the federal Copyright Act. See Bartsch v. Metro Goldwyn Mayerp Inc., 391
F.2d 150, 153; Fantastic Fakes, Inc. v. Pickwick International. Inc., 661 F.2d
479, 483 (5th Cir. 1981); De Sylva v. Ballentine, 351 U.S. 570 (1956). Second,
there is the question as to whether state or federal choice of law rules apply
where jurisdiction is founded upon a federal question. See Pennzoil v. Federal
Energy Regulatory Commission. 645 F.2d 360, 387 (5th Cir. 1981) (federal choice
of law rules apply); compare Klaxon v. Stentor Electric Manufacturing Co.,
Inc., 313 U.S. 487 (1941) (federal court sitting in diversity must apply choice
of law rules of forum state). Finally, there is the question of which state's
law should apply. Here, Maine, Tennessee and California are interested
jurisdictions. The Court has reviewed the law of the various Interested states
and the federal 'common law' and has determined that there is no conflict with
respect to the fundamental principles that are decisive in this case.
Accordingly, it Is unnecessary to undertake an extended choice of law analysis.
                                                              (end of page 16)
Plaintiff SOTO that it is the exclusive successor to the associational name,
"OTO," must, on this record, fail. At best, Plaintiff SOTO is shown to be
merely a corporate member of the organization, known as the OTO. Plaintiff
SOTO's ability to assert in a legal forum a claim of ownership of the Crowley
copyrights, therefore, must be derived from its capacity as an OTO member.
In summary, neither Plaintiff has proven direct ownership of the Crowley
copyrights. Any rights they may have must be derived from their status within
the OTO.

                                      B.
                                      --
Plaintiffs have the burden of proving that they own the copyrights in an
infringement action. Knickerbocker Toy Co.p Inc. v. Azrak-Eamway International,
Inc. 668 F.2d 699 (2d Cir. 1982); Walker v. University Books, Inc., 602 F.2d
859 (9th Cir. 1979); Ferguson v. National Broadcastinq Company. Inc., 584 F.2d
111 (5th Cir. 1978). If the OTO is not a legal entity capable of owning
property, Plaintiffs cannot own the copyrights, and their infringement action
must fail.
One of the fundamental precepts of Anglo-American jurisprudence is that a
right, to be enforced in a court-of lawt must have a "holder" or "bearer." See
IV R. Pound, Jurisprudence 192 (1959). There must be a "legal unit" to which
the right attaches. Id. This may be a natural person or some other entity which
has been accorded legal personality by common law or statute.
                                                          (end of page 17)
The concept of legal personality is to be distinguished from the concepts of
standing and capacity. Standing focuses primarily upon the relationship between
a person and a legal claim. See 13 C. Wright, A. Miller & E. Cooper, Federal
Practice and Procedure 5 3531 (1984). Capacity, as normally used, connotes
capacity to engage in legal transactions or to obtain judicial relief. Dean
Pound explained:.
   Capacity for rights must be distinguished from capacity for legal
   transactions (i.e., for acts intended to produce legal consequences to
   which the law, giving effect to the intention, attaches the intended
   consequence), capacity for wrongs (i.e. for acts involving civil
   liability for infringement of rights in rem), and capacity for crimes
   (i.e. for breaches of absolute duties for which the law provides penal
   consequences). Want or loss of legal personality, therefore, is quite
   another thing from lack or loss of capacity for legal transactions or
   for wrongs or for crimes or for all of them. A person may have legal
   rights (using rights in the broader sense) and yet be incapable of
   legal transactions, or incapable of incurring legal liability, or
   incapable of responsibility for what would otherwise be accounted
   crimes.
IV R. Pound, Jurisprudence 276-77.
The record in this case poses the fundamental question as to whether the OTO is
a person in the law. Under the common law, an unincorporated association is not
recognized as a legal entity. Moffatt Tunnel League v, United States. 289 U.S.
113, 118 (1933); Johnson v. South Blue Hill Cemetery Association, 221 A.2d 280
(Me. 1966); Byam v. Bickford, 2 N.E. 6870 140 Mass. 31 (1885); State v. Sunbeam
                                                       (end of page 18)
Rebekah Lodge No. 1 80 , 127 P. 2d 7 26 , 169 Or. 253 (1942). Relief from this
rule is available in two different ways. First, courts may determine that a
right such as ownership which cannot vest in the association as an entity may
vest in the individuals who comprise the organization. See, e.g., County of
Trinity v. Rourke. 79 Cal. Rptr. 902. 275 C.A.2d 628 (1969); Flanagan v.
Benvie, 273 P.2d 381, 58 N.M. 525 (1954); Rhode Island Association for Blind v.
Nugent, 206 A.2d 527t 99 R.Io 187 (1965); Byam v. Bickford, 2 @N.E. 687, 140
Mass. 31 (1885); Johnson v. South Blue Hill Cemetery Association, 221 A.2d 280
(Me. 1966). Alternativbly, some states have enacted statutes conferring entity
status upon unincorporated associations for one or more purposes. See, eg.,
Cal. Corp. Code p 20001 (West 1977) (permits "any unincorporated society or
association" to hold property); 14 M.R.S.A. p 2 (1980) (unincorporated
association may sue in the name of its trustees).
It is elementary that a court may not recognize an association as a legal
entity under a statute or, alternatively, determine that a right vests in the
individual members of an association unless the association has a distinct,
identifiable membership. See Johnson v. South Blue Bill Cemetery Association,
221 A.2d 280 (Me. 1966); State v. Sunbeam Rebekah Lodge No. 180. 127 P.2d 726,
169 Or. 253 (1942), An "association" that exists in name only is not an
association at all, as the term is defined in both common and legal vernacular.
Although the formalities of
                                                       (end of page 19)
the corporate form are by definition absent, an unincorporated association must
have certain characteristics which justify its recognition as an @en@tity or as
a distinct group of individuals.
The term "unincorporated association" has been defined as:
   a voluntary group of persons, without a charter, formed by mutual
   consent for the purpose of promoting a common enterprise or prosecuting
   a common objective.
 Local 4076. United Steelworkers v. United Steelworkers, AFL-CI0f 327 F.
 Supp. 1400. 1403 (W& D. Penn. 1971). The term was elsewhere defined
 similarly as
    [an] organization composed of a body of persons united
    without a charter for the prosecution of some common enterprise.
    Meinhart v. Contresta, 194 N.Y.S. 593, 594 (Sup. Ct. Spec. Term 1922).
California Clipperst Inc. v. United States Soccer Football Association, 314 F.
Supp. 1057, 1068 (N. D. Cal. 1970). The Supreme Court had occasion to expound
upon the ordinary meaning of the term "association" as it is used in the law:
   It has been defined as a term Mused throughout the United States to
   signify a body of persons united without a charter, but upon the
   methods and forms used by incorporated bodies for the prosecution of
   some common enterprise,.' 1 Abb. Law Diet. 101 (1879); 1 Bouv. Law
   Diet. (Rawle's 3rd Rev.) 269; 3 Am. & Eng. Enc. Law (2d ed.) 162; and
   Allen v. Stevens (App. Div.), 54 N.Y.S. 8, 23, in which this definition
   was cited with approval as being in accord with the common
   understanding. Other definitions are:
   "In the United States. as distinguished from a corporation, a body of
   persons organized, for the pro-
                                                    (end of page 20)
   secution of some purpose, without a charter, but having the general
   form and mode of procedure of a corporation." Webst. New Internat.
   Dict. "[U.S] An organized but unchartered body Analogous to but
   distinguished from a corporation." Pract. Stand. Dict. And see Malley
   v. Bowditch (C.C.A.), 259 Fed. 809, 812; Chicago Title Co. v.
   Smietanka (D.C.) 275 Fed. 60: also United Mine Workers v. Coronado Co.,
   259 U.S. 344, 392, in which unincorporated labor unions were held to be
   "associations" within the me aning of the Anti-Trust Law.
Becht v. Malley. 265 U.S. 144, 157 (1923). See also Penrod Drilling Company v.
Johnson. 414 Fc2d 12170 1222 (5th Cir. 1969); Health Care Equalization
Committee of the Iowa Chiropractic Society v. Iowa Medical Society. 501 F.
Supp. 970. 976-77 (D. Iowa 1980).
These definitions make it clear that an unincorporated association is more than
a name; the concept connotes a well-defined group of legal persons connected by
a common purpose or interest. This common purpose or interest affords a court
objective criteria by which it may ascertain the membership. Lacking such
criteria, a court cannot grant requested relief to the members of an
association. See Johnson, 221 A.2d at 283; Sunbeam Rebekah Lodge, 127 P.2d at
731. In Johnson, the Maine Supreme Judicial Court identified the obstacles to
permitting a testamentary gift to vest in the members of a volunteer,
unincorporated cemetery association:
   The actual membership of the Association at the time of the testatrix's
   death is uncertain and cannot be ascertained with any reasonable degree
   of accuracy. No by-law exists which regulates or
                                                          (end of page 21)
   defines eligibility for membership ... No criterion of membership
   being established, neither the purchase of a cemetery lot nor a
   donation to the Association without more was sufficient to characterize
   such action as an assent on the part of the purchaser or donor to
   become a member of the Association. Thus, in the instant case, basic
   and necessary conditions upon which membership in the defendant
   Association could be predicated are wanting, and rights and liabilities
   as usually arise from membership in an unincorporated voluntary
   association cannot be left for their enforcement to such loose
   contacts as evidenced herein. The membership in the South Blue fill
   Cemetery Association was not sufficiently definite and determinate.
Johnson. 221 A.2d at 283 (emphasis added).
The Court has found that Plaintiff SOTO, a Tennesee corporation, is at best one
of many actual or potential claimants to OTO membership. On the evidence before
the Court it is not possible to identify a chain of successorship which enables
the Court to recognize a definite organization which has the exclusive right to
use of the OTO associational name. Crowley identified several possible
successors to himself and Germer, and Motta was not one of them. The Court has
found that Germer did not appoint Plaintiff Motta as his successor. When they
discussed possible successors in their correspondence, both Crowley and Germer
wrote in vague, noncommittal terms. They both often changed their opinions of
their followers and sometimes about each other. Their judgments about OTO
hopefuls with whom they corresponded were highly subjective and are
                                                        (end of page 22)
not capable of translation by this Court into objective criteria by which the
present-day membership of the OTO may be ascertained. Their correspondence,
like most of the letters introduced in the case, is steeped in intrigue and
recrimination. The evidence adduced at trial demonstrates that anyone who
engaged in correspondence with Crowley and Germer regarding the OTO could not
be prevented from starting his own group under the OTO banner.
The reality is that neither Crowley nor Germer articulated, prior to their
deaths, anything resembling a set of objective criteria by which the Court can
determine the repository of OTO authority or the limits of its membership.
Crowley's legacy is not an organization of definite membership, but an
amorphous set of ideas and rituals which may be appropriated by any Crowley or
OTO aficionado, The record does not prove the evolution. subsequent to the
deaths of Crowley and Germer, of any authoritative criteria to determine
membership in any discrete group of persons known as the OTO. In short, the OTO
is not a legal "person" capable of owning property as an entity or through its
individual members.
Having failed to prove that Plaintiffs own the copyrights in their individual
capacities, Plaintiff Motta is forced to resort to claiming ownership as a
member of the OTO. Plaintiff insists that the Court can award its "ultimate
judgment" to the OTO and that it need not decide who are the true followers of
Aleister Crowley. It is true
                                                   (end of page 23)
that the Court need not choose among rival claimants, but the Court must
determine that the OTO has legal personality in order to find that it is
capable of ownership. Such a determination cannot be made on this record. The
critical distinction is that to be made between a design for a fraternal
fellowship that exists only in the abstract on the one hand, and an actual
assemblage of human beings associated for some unique or discernible purposes
on the other. The OTO is shown by this record to have been nothing more than an
idea in the mind of Aleister Crowley which was embraced by that of Germer.
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 be the OTO,
as conceived of by Aleister Crowley when he devised his literary rights to the
OTO. The abstract idea of an OTO persists, available to be appropriated by
anyone so inclined, but no single group of persons having exclusive right to
use of the OTO name appears from this record to exist.
                                                     (end of page 24)
Finally, the Court should take note of the fact that neither Plaintiffs nor
defendants expressly raise in a discrete context the issue as to whether the
OTO is a cognizable legal entity. Ordinarily, when an issue is not raised, it
is waived. In this case, however, there are at least two compelling reasons why
the Court must deal with the issue sua sponte.
First, there is no question that the parties raised the issue of Plaintiffs'
ownership of the copyrights as an element of a claim of infringement, and
capacity for ownership is an essential predicate to such ownership. Plaintiff
Mottals infringement claim is derived from the alleged ownership of the OTO. He
has a claim only if ownership of Crowley's literary remains is vested in the
OTO. In light of this posture, the Court can hardly overlook the question of
whether the OTO is capable of such ownership.
Second, the question as to whether an entity is sufficiently well-defined to be
legally cognizable is so fundamental to the effectiveness of the Court's
ultimate order that the Court must consider the issue on its own motion. It is
in essence a consideration going to justiciability, which may be raised sua
sponte. Cf. Bergstrom v. Bergstrom, 623 F.2d 517, 519 n. 1 (8th Cir. 1980)
(issue of ripeness may be raised sua sponte at any stage of proceedings);
Juidice v. Vail, 430 U.S. 327, 331-32 (1977) (issue of standing raised sua
sponte).
                                                    (end of paghe 25)
Accordingly, it is ORDERED that Judgment be entered in favor of Defendant.

                             So ORDERED
                                -------
                             GENE CARTER
                             United States District Judge
 Dated at Portland, Maine, this 6th day of December, 1984.
                                                     (end of document)

Items of Historical Interest

Some background information

Some Things

Other Background

Traduction française: Jeu de rôle d'une O.T.O.-Fatamorgana.
Traduzione italiana: La versione play-game di un O.T.O.-Fatamorgana

Traduction française: Fétiche, auto-induction, stigmatisation et jeu de rôle.
Traduzione italiana: Il feticcio, l’auto-induzione, lo stigma, il gioco di ruolo.
Tlumaczenie polskie: Fetysz. Rytualy. Resocjalizacja: Tozsamosc przez stygmat. Autoindukowana schizofrenia. Odgrywanie ról.
По русски: Фетиш, самоиндукция, стигма и ролевая игра.

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