View high-resolution side-by-side images of selected cards from the first Tarot deck and the US Games deck.
This is a set of answers to frequently asked questions about the Rider-Waite-Smith Tarot deck copyrights.
Since I'm not a lawyer, this is presented for entertainment purposes only and should not be considered as offering legal advice. If you want to publish the RWS Tarot cards you should contact a copyright lawyer for legal advice.
I've attempted to present a 'fair and balanced' view of this matter. However, this FAQ doesn't cover the totality of this very complicated case. Nor does it cover any aspects of the history of the RWS Tarot beyond the legal issues. Any opinions (as opposed to matters of fact) in this document will be clearly identified by the phrase 'In my opinion'. I welcome any corrections, suggestions, or anecdotes which might shed more light on this situation.
My principal reference for this has been The Public Domain, by Stephen Fishman (Nolo Press, 2000, ISBN 0-87337-433-9), the US Copyright Office website, and personal correspondence from various parties. If you are interested in a look at the evolution of the RWS Tarot, I highly recommend the following website: Holly's Rider Waite Site. Holly has also provided images of a 1910 Tarot deck to sacred-texts. I'd also like to thank Dr. Scott Swanson, who was of great assistance in preparing this FAQ. Visit his site at www.rider-tarot.com.
In the 19th century, a good deal of land in the United States which had been considered the 'commons' was sold to railroad companies at dirt cheap prices. This was ostensibly done in the public interest to facilitate the building of a transcontinental railroad. While this is what we learn in history class, it is hardly the entire story.
For starters, the railroads devastated the culture of the native Americans of the great plains. The land grab was facilitated by corrupt members of Congress who, as it was discovered, had been offered free or inexpensive railroad stock in exchange for their votes. And the railroads were granted huge swathes of land which later made them fabulously wealthy, not just the right-of-way to build the tracks.
In the 21st century, a similar land grab is underway, this time in intellectual property. This time, tremendously concentrated media companies are in the process of squeezing every last dollar out of the work of long dead authors. This material is marketed in every conceivable fashion. For instance, for every copy of the book Winnie the Pooh, there are thousands of times more 'Pooh-branded' clothes, toys, videos, and other items sold. Thus the value of this intellectual property far outweighs the revenue derived from sales of the beloved children's classic. However, the copyright laws are the underpinning for the rest of the billion dollar Pooh juggernaut. And where this much money is at stake, it is inevitable that public policy will be impacted by corporate demands.
For this and other reasons, the media companies have lobbied for and received copyright extensions for existing works. This broad brush approach has not only allowed them to continue to profit on works that would have gone into the public domain, it has also tied up the copyright status of many lesser and obscure works.
The changes in copyright law led to a situation where they rival the tax code in their complexity. It has nearly become impossible to determine the copyright status of certain works without hiring a lawyer, and even then companies with better legal resources can intimidate people into paying them licensing fees by selectively quoting the favorable portions of the law. One case in point is the Rider-Waite-Smith Tarot deck.
Contents of this FAQ © Copyright J.B. Hare, 2003, all rights reserved.
Q. What is the Rider-Waite-Smith Tarot Deck?
A. Created at the beginning of the 20th Century, The Rider-Waite-Smith (RWS) Tarot deck is one of the most popular renderings of the Tarot card images. It is not the only Tarot deck; there is no 'official' deck. Anyone can draw their own visualization of these cards, which have been in use for centuries. However, the RWS deck is the best selling and most recognizable Tarot deck.
Q. Who created the RWS Tarot deck?
A. The RWS Tarot deck was published in December 1909 by William Rider And Son of London. The deck was the product of the collaboration between the artist, Pamela Colman Smith (b. 1878 d. 1951) and Dr Arthur Edward Waite (b. 1857 d. 1942), who were both members of the Order Of The Golden Dawn, a famous occult group of the 19th Century. For some reason (sexism no doubt), Pamela Smiths' contribution is usually ignored, and the deck is commonly called the Rider-Waite Tarot. I've decided to use RWS instead.
Q. What is the publication data for the Pictorial Key to the Tarot?
A. The Pictorial Key to the Tarot (PKT) was published in 1911 in London by Rider and Sons. This contains black and white line drawings of the RWS Tarot deck. An earlier version of the same book (which didn't have the black and white illustrations, but which was bundled with a RWS deck) titled 'The Key to the Tarot', was published in 1910. Thanks to Holly for pointing this out.
Q. What is the US copyright status of a work published in 1909?
A. Any work published prior to 1922, regardless of the country of publication, the citizenship of the author, whether it was registered or not, is in the public domain in the United States. No further copyright claims can be made on that work, and any attempt to prosecute someone for use of that work would be thrown out of a copyright court.
Works published in the US today have a copyright term of life + 70. This is not retroactive, so US books previously in the public domain in the US did not get their copyrights restored when the new term of copyright was enacted.
Q. What is the US copyright status of the RWS and the PKT?
A. The RWS cards and the Pictorial Key to the Tarot are in the public domain in the United States, any other statements notwithstanding.
Q. What is the EU or UK copyright status of a work published in 1909?
A. The date of publication is irrelevant. According to current EU and UK copyright law, the work passes into the public domain 70 years after the death of the author. This is retroactive, in other words, works previously in the public domain when the term was life + 50 had their copyrights extended.
Q. What is the EU or UK copyright status of the RWS and PKT?
A. Since Smith died in 1951, the RWS deck would not be public domain in the EU and UK until 2021 if she was acknowledged as the author of the work. However, apparently she did this as a 'work for hire', which means that they will be in the public domain in 2012, the 70th year after Waite's death. Since Waite died in 1942, the Pictorial Key to the Tarot won't be in the public domain in the EU and UK until 2012.
Q. Many works are in the public domain in the United States but not in the EU or UK. That hardly seems fair. Aren't there international laws that allow owners of copyrights to enforce their copyright worldwide?
A. In a nutshell, yes, but (in my opinion) they don't apply to the RWS or the PKT.
For instance, in 1994 the US signed the GATT (General Agreement on Tariffs and Trade). Among many other things, GATT normalized copyright terms for works that had entered the public domain in the US because the owners had failed to comply with US copyright laws.
Foreign works in the public domain in the US as of January 1, 1996, qualified for a copyright restoration if they were published:
1. between January 1, 1923 and March 1, 1989 without a proper copyright notice.
2. during 1923-1963 but were not renewed in the 28th year by application to the US Copyright office.
3. in countries with which the US had no copyright relations.
Any works falling into these categories had a US copyright restored effective January 1, 1996 if:
1. At least one author was a citizen of a country having copyright relations with the US (which is practically everywhere).
2. It was first published in a country with which the US has copyright relations and not published in the US within 30 days of the foreign publication.
3. Its copyright had not expired in the country of foreign publication.
Not restored were:
1. Foreign works published before 1891.
2. Foreign works published during 1891 through July 1, 1909.
3. Foreign works published between July 1, 1909 and December 31, 1922, which received a full term of US copyright protection and had their copyright expire normally.
4. Foreign works whose copyright had expired as of January 1, 1996.
There is also the Berne convention and the UCC treaty, which are discussed below.
Q. Does GATT apply to the RWS Tarot or the PTK?
A. Let's assume a date of publication 1910 for both works. If they were published with a copyright notice this would have given them a copyright term of 28 years, that is, until 1938). If they were renewed in the 28th year of publication at the US copyright office, this would have given them an additional 47 years of protection. Since a number of parties base their copyright claims on the RWS and PTK having a full US term of copyright, we should give them the benefit of the doubt and assume that's the case. That would mean that the US copyright expired in 1985, at the latest.
In my opinion, this means that the US copyright expired in 1985, considerably prior to January 1, 1996 (see number 3, above, in bold). Hence the GATT restoral does not apply to the RWS or the PKT.
One possible exception would be if there was no renewal; as a matter of fact, this would indicate that a GATT restoral would technically be in force. However, in this case, the copyright would be on shaky ground because (in my opinion) it would call into question the chain of ownership.
Q. How are copyright laws enforced?
A. The technical status of a copyright is only half the story. In order for a copyright to be enforced there needs to be someone willing to spend time and considerable money to enforce that copyright. It's not like the government sends out a legal SWAT team any time there is a copyright violation.
Most copyright cases take five or six figures in legal fees before they are even brought to court, plus more if they are challenged. Hence only some entity with deep pockets or a massive revenue stream from a copyrighted work could have the wherewithal to engage in a copyright lawsuit.
This is why you are much more likely to get sued if you use Winnie the Pooh or Harry Potter without permission, than if you pirate a obscure book from 1931 that is long out of print. In both cases, you are technically in violation of the copyright law. In the former, you will probably get hit by a ton of legal grief. In the latter, the chances that someone would be willing to take you to court are slim to nil.
In the case of RWS there is a party with a motive to enforce the rights: US Games. While hardly a corporate giant, they definitely have a financial stake in owning and enforcing the rights to RWS, as the bulk of their business is related to selling decks of these cards.
US Games' founder and CEO, a Mr. Kaplan, first obtained a deck of the RWS cards in 1968 at the Nuremberg Toy Fair. He purchased the deck, and started to sell reproductions of it, selling 200,000 in the first year of business alone. Today US Games sells a product line which includes over 600 varieties of playing cards, with the RWS Tarot being its core holding.
Q. What is the basis of US Games' claim of ownership of the RWS rights?
A. U.S. Games claims a copyright on the Rider-Waite Tarot deck. Here is US Games' official position (source: personal correspondence) on the copyright. I have abridged this slightly and corrected some minor spelling and punctuation errors:
"Below please find a summary of the copyright ownership trail (extracts taken from a letter from the copyright owner) as well as a summary of the copyright position under US, UK and EU laws.
"The copyright owner is J. D. Semken, the surviving executor of W. R. Semken who died in July 1970. He was one of two ultimate residuary legatees under the will of Arthur Edward Waite, who died on 19 May 1942. After the death on 15 September 1980 of Miss A. S. M. Waite, the tenant for life, the Public Trustee, in winding up the Waite estate, assigned to W.R. Semken and J. D. Semken "all the copyright and rights in the nature of copyright in the works of Arthur Edward Waite comprised in his estate".
"Random House: Publish the cards under an exclusive license from the copyright owner. (They do have the documentary and contract evidence to prove the position)
"US Games: Effectively a sub-licensee of Random House and holder of Rider-Waite trademarks throughout the world.
"The Rider-Waite cards were first published in 1910 under exclusive license by A. E. Waite's publisher Rider & Co and were subsequently republished by the successors of Rider & Co, Hutchinson Publishing Group and in 1993 with J. D. Semken's full agreement by Random House under the Rider imprint.
"The Rider-Waite Tarot cards are subject to UK copyright laws because the works were first published in the UK. The copyright term is 70 years from date of death of the author.
"The Rider-Waite Tarot works (cards and books) have 70 years from date of death of the author. A. E. Waite commissioned the drawings from Pamela Colman-Smith and under the old UK Act the copyright owner is the person who commissions the drawings. Therefore, copyright will expire 70 years from A. E. Waite's date of death. He died in 1942 so copyright will expire in 2012.
"Generally UK works are, to a large extent, protected internationally, not by any all-embracing international copyright law, but by a combination of treaties and conventions that most nations are signatories to.
"The most important one is the Berne Convention. Under this Convention:
"1. Authors shall have, in Berne signatory countries, copyright protection for their works amounting to 'national treatment' i.e. the same rights which those other countries grant their own nationals and governed by the same domestic laws.
"2. Protection is not subject to any formalities (for example registration in the US).
"3. Copyright starts when the work is created (or fixed in material form) for the rest of the life of the author plus a minimum of 50 years from death of author, unless domestic laws allow for a longer period (e.g. 70 years in the US and EU).
"The Universal Copyright Convention (UCC) is the other primary Convention. It contains the same key principles as the Berne Convention above, the difference being that the minimum term of copyright is the life of the author plus 25 years.
"It depends which countries are parties to which treaty/Convention as to what principles they will be guided by.
"Is a member of, amongst others treaties, the Geneva Convention and the UCC. Therefore, in the US the Rider-Waite Tarot cards will be treated as if they were a work of US origin. The standard US term of copyright is life plus 70 years.
"This would then mean that in the US the copyright on the Rider-Waite Tarot only falls into the public domain in 2012.
"Is a member of, amongst others treaties, the Geneva Convention and the UCC. Therefore, in EU the Rider-Waite Tarot cards will be treated as if they were a work of EU origin. The standard EU term of copyright is life plus 70 years.
This would then mean that in EU the copyright on the Rider-Waite Tarot only falls into the public domain in 2012.
"Random House and US Games will use the full force of the law to protect the copyright, with the full support of the copyright owner, and this will be at the infringer's expense. We have successfully fought copyright infringements in the past and will continue to do so as necessary."
According to correspondence from various parties, US Games is currently still, as of 2003, enforcing its copyright vigorously, charging licensing fees that can range from several hundred dollars a year and up to use the RWS Tarot deck, including similar or related images.
However, I'm unaware of any instance in which US Games actually attempted to sue anyone for copyright infringement and won. Normally people wishing to use the RWS just give in and license it from US Games. I welcome any correspondence about this. In my opinion, an attempt to deal with this in court would result in their copyrights being invalidated, so they have no interest in getting a court decision; hence they use intimidation instead, and don't necessarily proactively track 'violations'.
In my opinion, their use of the Berne convention is specious. Here is one objection (personal correspondence):
"The Berne Convention, ratified in the UK on December 5, 1887, said that no formal registration was needed by the author to maintain his copyright claim. However, UK law required that the author register with Stationers Hall ( the UK equivalent to the US Copyright Office), until the UK Copyright Act of 1911 was passed into law on July 1, 1912. That means, according to UK law when Waite published his work in 1909, he had to have registered his copyright claim with Stationers Hall. If he failed to register, the works were public domain as soon as they were published in 1909 because he was in violation of UK law and not afforded the UK copyright protection as a result.
"If he did file his claim with Stationers Hall, the duration of his copyright according to the revision of the UK copyright law in 1911 was the duration of his life plus 50 years. And according to the 1908 Berlin Act to the Berne Convention, it was also life plus 50. That means, 1942 plus 50 - 1992 the work went into public domain. The British Copyright Law of 1988 also maintained the Life plus 50. So, if no changes to the law took place by 1992, the work went into public domain in the UK."
Note that this does not alter the current status of the UK copyright, which has been extended to life + 70. It does, however, have a bearing on the Berne status in the US, because that is not retroactive as far as I know. So there is no reason to assume that this is an issue, in my opinion.
In addition, stating that the US term of copyright is life + 70 is also specious in this case, in my opinion. This is true for works published today. But it does not apply to works published in 1909. The US copyright extension to life plus 70 as of January 1, 1978, specifically excluded works that were already in the public domain.
To sum up, US Games' claim is based on one interpretation of the law, which ignores certain unfavorable aspects of US copyright law detailed in prior portions of this document. In my opinion, if a US court looked at this today they would say 'well, this work was published in 1909; the law is fairly clear on this. Even if you have a clear chain of ownership on the copyright, you lost any right to enforce it in the US in 1985.'
Q. My US Games deck says "Copyright 1971". What does this refer to, if the deck was published in 1909?
A. In order to claim a new copyright on public domain material, you need to demonstrate substantial amounts of creative additions to a work. And then the copyright only applies to your changes.
In 1971, US Games filed a copyright claim at the US Copyright office as follows:
Registration Number: VA-101-718
Title: The Rider tarot deck / the original and only authorized ed. of the famous 78-card tarot deck / designed by Pamela Colman Smith under the direction of Arthur Edward Waite.
Description: 78 col. prints; cards in box.
Claimant: acU. S. Games Systems, Inc.
Author on Application: artwork & text on cards & box: U. S. Games Systems, Inc., employer for hire.
Previous Related Version: Appl. identifies tarot card designs as preexisting material.
Claim Limit: NEW MATTER: "lithographic reproduction of designs & text on tarot cards, artwork & text on box."
Special Codes: 5/K
Note that this application only applies to 'New Matter'. This is copyright terminology which means anything added to a preexisting work. In this case US Games claims a copyright on everything except for the actual RWS images. Essentially this means their designs on the back of the deck and the box.
It is clear that, with minor exceptions, US Games' card face artwork is a direct copy of the original RWS cards. This applies both to the line art and the coloring of the cards. So anyone using the actual images on the card faces in the US is, in my opinion, in the clear so far as copyrights are concerned at this point in time.
US Games can legally pursue anyone who copies the design of their box, the card backs and so on, and will be able to do so far into the middle of the 21st century. However, it does not cover the actual card artwork, in my opinion, as the application clearly states.
Q. US Games claims that they also have a trademark on the RWS Tarot. What is this about?
A. US Games is currently claiming trademark protection for the term 'Rider-Waite Tarot'. Having a trademark gives USGS another legal firewall if their copyright claim is breached, since then they could theoretically use the trademark to intimidate anyone claiming to sell a 'Rider-Waite Tarot' product. The problem is that a trademark can be renewed indefinitely. However, a recent US Supreme Court decision (02-423, 539 US (2003), Dastar Corporation v. Twentieth Century Fox Film Corporation; refer to http://www.supremecourtus.gov/opinions/02pdf/02-428.pdf) established that attempting to use a trademark to gain protection for material with an expired copyright invalidates the trademark. So this might not hold up in court if they tried to use it.
There are three entries in the US Trademark Office online database by US Games Systems pertaining to the Tarot:
INDX/V3075 P115 : The Rider Tarot deck VA 101-718 (1982) The Rider Tarot deck; trademark No. 1-644-495 (1991) The Rider-Waite tarot deck; trademark No. 1-640-623 (1991)
The dates are significant. A circa 1910 US Copyright would have expired about 1985. This implies that USGS was fully aware that the term of copyright on the RWS Tarot was expiring, and they were searching for a new way to protect their most lucrative product.
In my opinion, this shows the extent that USGS will go to to keep Ms. Smiths' cards out of the public domain, where they belong. This abuse of the trademark law to trump copyright would not be looked on favorably by any fair judge. However, it raises the bar (i.e. expense) for any potential legal challenge, since a completely separate body of law would have to be dealt with.
Q. I've heard that Pamela Coleman Smith wasn't paid for her work, and that invalidates all successive copyright claims.
A. This is apparently not true. According to an interview with Mr. Kaplan of US Games, "Pamela Colman Smith sent [a letter to] Alfred Stieglitz in 1909 or 1910 telling him that she had just done a big job of 78 illustrations for very little money. That was the Rider-Waite Tarot deck."
A work for hire is a work created for another person for which you are paid in exchange for relinquishing claim on any rights to the work. If Smith had not been paid, it would possibly call into question the chain of copyright ownership of the RWS Tarot.
Since she was paid (even if it was 'very little'), she and her heirs had no further claim on the cards.
Q. Can a mechanical reproduction of a public domain artwork be copyrighted?
A. If I publish a print of the Mona Lisa, does that mean I own the copyright on the Mona Lisa? As silly as this sounds, until recently, the answer to this was yes--sort of. Museums very routinely put copyrights on prints that they sell of paintings in their collection, even though any copyright on the painting would have expired long ago (and in many cases, the painting was created long before there were any copyright laws). They then used these copyrights as a means of pursuing 'unauthorized' reproductions of these paintings.
However, a recent court decision in the United States (Bridgeman Art Library v. Corel Corporation) has established that simple reproductions of two-dimensional artwork do not justify a fresh copyright claim. Note that this precedent was established in the United States, and is not relevant to EU or UK law. It only applies to mechanical reproductions of two dimensional artwork, not photos of sculpture, etc. This is a huge benefit to the public domain, since it means that it is now possible to freely use a wide range of public domain art in books, on websites, etc.
This effectively closes another legal loophole by which a new copyright could be claimed on the RWS Tarot. This means that a mechanical reproduction of these cards cannot be copyrighted. It also knocks out another leg of the legal justification for US Games pursuing anyone who publishes their own reproductions of the card images.
Q. So, if sacred-texts uses these images, can I use these images at my website?
A. My website is physically located in California. Hence US copyright laws apply. In my opinion, these reproductions of the images from the PKT, published in 1911, are in the public domain and I have a right to use them.
If you use the black and white images, scanned from the PKT, or the color images of the 1910 Pamela-A deck, at a website in the United States, and your website is non-commercial in nature, you probably won't have any problems. On the other hand,
You are probably going to have to deal with U.S. Games and pay them a licensing fee.
One approach might be to draw your own images based on the RWS Tarot, or color the black and white PKT line drawings with your own selection of colors. There are several (in my opinion, pretty hideous) examples of the 'coloring book' approach on the Internet. However, if your server is not in the US, or your enterprise is commercial in nature, this may not suffice. U.S. Games is very aggressive about demanding licensing even if your images are not direct reproductions of the RWS cards.
I know of one instance where a person who sells Tarot software drew his own electronic images (in 1991, before scanners were widely available) based on the RWS Tarot. These images are not in the slightest way a reproduction of the Pamela Coleman Smith deck in the traditional sense, but a rendering based on the original artwork. US Games is currently badgering this person to pay them a licensing fee.
In my opinion, this oversteps the intent of copyright laws. But never underestimate the '900 pound gorilla'.