For the UK, the European Union, Russia, and most of the world, copyright lasts the life of the creator plus 70 years. Which means that Waite’s oeuvre enters the public domain in most of the world starting on January 1st, 2013. Here in the United States, we do things differently, but any works published before 1923 are in the public domain, which in theory includes the Rider-Waite deck, originally published in 1909. Despite the deck technically being in the public domain in the United States, that hasn’t stopped U.S. Games from aggressively policing their rights to the deck here.
“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.
Starting in 2013 the primary question will rest on what rights, if any, deck illustrator Pamela Colman Smith had to the work. Were they work for hire, or is Smith to be considered a co-author, blocking the deck from entering the public domain? In the past U.S. Games itself has acknowledged that their copyright claims rest with Waite, and that it all ends in 2012.
“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.” – U.S. Games
However, a 2008 interview that folklorist Stephen Winick conducted with U.S. Games founder Stuart Kaplan makes it very plain that the company has changed course and now believes their rights extend until 70 years after the 1951 death of Smith.
“The copyright protection on the Rider-Waite Tarot runs to 2021, which is seventy years after the date of death of the artist, [Pamela Colman Smith],” he said. The only way to test this understanding would be in court, but Kaplan doesn’t recommend this approach: “In the past several years, U.S. Games Systems has had to sue two large companies for copyright infringement,” he said. “In both instances we were successful, and received full reimbursement of substantial legal costs. U.S. Games Systems and its partners actively monitor and seek to protect all of its intellectual property rights.” If you want to use the artwork from the Rider-Waite Tarot, the simplest approach is to contact U.S. Games Systems and discuss licensing possibilities.
This new position on the Rider-Waite-Smith deck’s copyright was on full display in 2009 when they sent a letter to Mystic Games about their “Popular 1910 Tarot” (In essence the original Rider-Waite deck).
“You are using the Rider-Waite illustrations without permission from US Games Systems who legally hold the copyright and trademark. We ask you to cease and desist telling customers that the images are in the public domain. Mystic Games does not have authorization to use the images on their site. The images are only to be used with proper authorization so please contact me. Pamela Colman Smith, the artist, died in 1951 and the deck does not go into public domain until 2021, 70 years after the artist’s death.”
In talking with some contacts in the field of copyright law, the consensus seemed to be that, quote, “the public domain isn’t 100 percent legally sacrosanct and contracts are messy.” In short, the only way the Rider-Waite-Smith deck is entering the public domain before 2021 it through a long and expensive (and possibly international) lawsuit with U.S. Games. Kaplan intentionally uses fear-mongering in talking about the copyright by invoking successful lawsuits against “large companies.” What isn’t said is that those lawsuits didn’t happen after the works of A.E. Waite passed into the public domain. Still, what company is going to spend their resources in order to wrest U.S. Games’ prized possession away from them? I don’t see it happening.
I’m personally ambivalent on this matter. On one hand, I think Pamela Colman Smith should be credited as a co-creator of the Rider-Waite deck, it is her images that made Waite’s deck immortal, that helped revolutionize tarot itself. However, I also think that the public domain is vitally important to the growth of the arts, and the efforts by corporations and companies to keep works out of it, long after the creators have passed, hinders the natural ecosystem of ideas. If these illustrations were indeed work-for-hire, which they do seem to be from all accounts I could find, then the original tarot deck created by Waite and Smith should be free and available for all to use starting in 2013. Further enriching U.S. Games does not honor Smith in any appreciable way, and their control only stifles the art form.
So, while Waite’s works are passing into the public domain, I would be cautious about assuming the same concerning his most famous (co-)creation. I’ll be watching with great interest in the years ahead to see if any significant challenges to U.S. Game’s control emerge.