“The Biennale is the first time so many Thoth paintings will be on public display for such a length of time—about 5 months. Attendance at the last Biennale approached 400,000, so this will introduce the Thoth Tarot to a large, new and sophisticated audience. […] The nine paintings included are: Atu VIII – Adjustment, 1940, Atu XII – The Hanged Man, 1938–40, Atu XV – The Devil, 1938–40, Atu XVI – The Tower (or: War), 1939, Atu XVIII – The Moon, 1938–40, Atu XIX – The Sun, 1938, Queen of Wands, 1938–40, Ace of Cups, 1940, Queen of Cups, 1938–40.”
This is amazing news for those who’ve longed to see Lady Frieda Harris’ work in person, but perhaps the even bigger news is that the O.T.O. has also announced that it will be litigating against U.S. Games over their publication of the Thoth tarot deck.
“O.T.O. is filing suit in U.S. Federal Court against U.S. Games Systems, and perhaps others, over the Thoth Tarot Deck. Years ago O.T.O. licensed the Thoth Tarot to AGMüller (whose assets are now part of Königsfurt Urania, a division of Carta Mundi, the world’s largest card producer). In an attempt (clearly misguided in retrospect) to “make room” in the deal for U.S. Games, who had long published the deck under an arrangement with Samuel Weiser dating from the days when the deck was public domain in the U.S.A., we set up the deal to let U.S. Games continue in North America, supplied with the decks by AGMüller, with U.S. Games executing a separate license with O.T.O.—the U.S. copyright to the Thoth Tarot had by then been restored, in 1996. We concluded our contract with AGMüller for world distribution less North America. The “set-aside” of North America to accomodate U.S. Games gave rise to a last-minute clause in our contract with AGMüller that allowed AGMüller to ship decks to U.S. Games royalty unpaid—it being understood that U.S. Games would take care of its royalty obligations for North American English sales through the separate contract that they were expected to conclude with O.T.O. To my surprise and dismay U.S. Games then refused to sign the contract—or even discuss the contract any longer; and this was the contract that O.T.O. had negotiated hard with AGMüller to get for U.S. Games. Sadly, this loophole in our AGMüller contract has been exploited ever since, to the detriment of both copyright owners of theThoth Tarot. The grand total paid to the copyright owners for North American English language deck sales (by far the largest market in the world) has been exactly zero.”
If I understand this correctly, the allegation is that U.S. Games is exploiting a contract loophole to avoid paying royalties due the O.T.O., and doing so under the pretense that they don’t have to since they’ve never signed a contract. If this is accurate, then it would make two very popular tarot decks that U.S. Games is enriching itself with on uncertain legal footing. As I reported back in December of 2012, U.S. Games claims to have sole control over the Rider-Waite tarot deck despite A.E. Waite’s works entering the public domain in much of the world starting in 2013. In that case, U.S. Games is claiming Rider-Waite artist Pamela Coleman Smith as a full co-creator despite evidence that points to her paintings being done as “work-for-hire.”
“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 […] However, a 2008 interview (published in 2010) 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.”
In the case of the Rider-Waite deck, U.S. Games is betting that no one will have the time or resources to commit to a major legal challenge before their time finally runs out in 2021 and the original deck unarguably enters the public domain, but it’s a different story with the O.T.O. who have already fought and won legal battles relating to their control over the Thoth deck.
“OTO filed suit in US Federal Court in Southern California against Focus Features, NBC Universal and Vivendi for copyright infringement in connection with the appropriation of images from the Thoth Tarot cards to promote the Woody Allen film “Scoop,” where they were used on the poster, DVD packaging and in the press kits. The case has been resolved to the satisfaction of all parties. Under the terms of the agreement, the details of the settlement are confidential. This was a significant legal case, since OTO took on the world’s largest media conglomerate, represented by the best law firm in Hollywood. We have long taken on corporations many times our size before, e.g. Simon and Schuster, Doubleday and Harper and Row, but NBC Universal Vivendi is many, many times larger and more powerful than all these combined.”
Further, the O.T.O. seems completely unafraid of U.S. Game’s litigious muscle saying they are “prepared thoroughly for the case, both legally and financially,” that they “fully expect a typical American-style defense strategy that seeks to pit their considerable financial resources against ours” and are “confident of winning.”
To say it will be interesting to see what happens next is a vast understatement. Though some may not realize it, the market for tarot, divination, novelty, and gaming cards is huge, and U.S. Games has been making millions of dollars over the past several decades thanks to its control over popular decks like the Rider-Waite and the Thoth. If the O.T.O.’s confidence in their case bears out, it could mean a new American publisher for the Thoth deck, the deck going out of print in America for an undetermined period, or possibly a large settlement from U.S. Games (or some combination of these). Further, this case could raise troubling ethical issues relating to how U.S. Games has been doing business, issues which might concern authors and artists contracted with the company.
I have contacted U.S. Games for an official statement or response to the O.T.O.’s allegations, and will print that here once/if I receive anything. The Wild Hunt will continue to follow this story as it develops.
ADDENDUM: Stuart Kaplan, founder of U.S. Games, sent me the following statement in reply to my queries.
“U. S. Games Systems is a distributor of the Crowley decks which are published by AGMuller who we understand holds a license from OTO. AGMuller no longer publishes the extra Magus cards, and they are not available. U.S. Games Systems has not received any filing of litigation. The company has not done anything wrong and it will vigorously defend against any lawsuit.”