Thanks for raising this. I'm sure you are right that we need to consider the pre-1911 legal position more carefully when analysing the issues here. What follows covers just the UK position on copyright; I am sure that, as I and others have argued, the US copyright if it ever truly existed, has long ago ceased to apply there.
However, I'm not entirely sure you are right about the need for any assignment by Coleman Smith. It is important to distinguish between the copyright which extended to the book or books which Waite authored and which included the drawings by Coleman Smith, and the two component works which comprised the books, namely Waite's text and Coleman Smith's drawings. You mentioned the 1842 Copyright Act but this of course was only concerned with the copyright in books (or as the wording in the preamble puts it, "the Production of literary works"). Paintings, drawings and photographs* did not become protected by copyright in their own right until the 1862 Fine Art Copyright Act. It is to this act we should turn in order to see how the law applied to Coleman Smith's drawings before they were incorporated into Waite's books, all of which occurred before the 1911 Copyright Act came into force.
The relevant part of the 1862 Act is the first section. This section concerns the duration of copyright and is quite long and much of it is not relevant, and so I shall not quote it in full. However the full text can be found here
. Having set out the types of works to which it applies, the section says that the author's rights shall exist for his natural life and seven years after his death;
provided that when any Painting or Drawing, or the Negative of any Photograph, shall for the First Time after the passing of the Act be sold or disposed of, or shall be made or executed for or on behalf of any other Person for a good or a valuable Consideration, the Person so selling or disposing of or making or executing the same shall not retain the Copyright thereof, unless it be expressly reserved to him by Agreement in Writing, signed, at or before the Time of such Sale or Disposition, by the Vendee or Assignee of such Painting or Drawing or of such Negative of a Photograph, or by the Person for or on whose Behalf the same shall be so made or executed, but the Copyright shall belong to the Vendee or Assignee of such Painting [etc] ...
To my mind that part is relatively clear, namely, where the author of the work sells etc his artwork, copyright passes with the work to the new owner, unless the new owner (the buyer or Vendee/Assignee) agrees in writing to the author retaining the copyright. The logic of this is fairly obvious. The Act envisages a single original painting or drawing or photographic negative. Copies of it can only be made by having access to the work itself. Since control of access is one of the owner's property rights, it makes sense that he should also own the copyright. Even if the artist retains the copyright, he can't exploit the right to make copies of the painting etc without the consent of the new owner.
The same section then concludes, somewhat confusingly, by saying:
nor shall the Vendee or Assignee thereof be entitled to any such Copyright, unless at or before the Time of such Sale or Disposition, an Agreement in Writing, signed by the person so selling or disposing of the same, or by his Agent duly authorized, shall have been made to that effect.
Note that in this last part there is no mention of a work made or executed for valuable consideration (ie a commission). My interpretation of this is that for a sale etc there would need to be a written agreement which assigned the copyright to the new owner of the physical work, but that where it was a commission (as with Coleman Smith's tarot designs) the ownership of copyright would transfer automatically unless there was a written agreement to the contrary, signed at or before the point when the works were handed over. This is, of course, pretty much what section 5 (1)(a)
of the 1911 Copyright Act says later.
I don't think the 1842 Act is relevant here, other than in its application to Waite's books which incorporate the Coleman Smith drawings.
If I am right about this, then we need to view section 24
and the First Schedule
of the 1911 Act in that light. Looking exclusively at the rights attached to the drawings alone, I don't think section 24 has any bearing on the status quo, namely that Coleman Smith had already lost her rights unless there was a specific agreement to the contrary. I have seen no evidence that there was a written agreement of this sort. Thus by the time of the 1911 Act, which I think we can agree, has retro-active effect on both the books, and the text and drawings separately as individual works, Waite probably owns all the rights concerned, and we only need to consider Coleman Smith in relation to the term of protection afforded to her drawings. Under the 1862 Act the term would have been her lifetime plus seven years, but because of Schedule One of the 1911 Act, this became her lifetime plus 50 years. And of course since this term was still running in 1995 it was subject to the twenty year extension caused by the EU legislation.
And referring back to Helen's previous posting, here's what US Games Systems Inc claim about their rights in the tarot cards, as quoted on the sacred-texts website:
Rider-Waite Tarot Ownership
"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.
Publishing history of cards
"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.
If this is correct then it would appear that JD Semken, if he or she is still alive, is the actual owner of the copyright today. US Games's claim is, at best, limited to a sub-licence to publish just the cards themselves, based on Coleman Smith's designs. There is nothing to indicate that they
have an exclusive licence or that it entitles them to the worldwide rights. They carefully confuse the issue by saying that Rider & Co published the tarot cards under an exclusive licence in 1911 (fairly obvious as they were the publishers of his book), and this licence passed to Hutchinsons as the successors in title to Riders, and eventually to Hutchinson's parent company, Random House. There is no evidence that Random House's licence is either still extant (most publishing agreements have sunset clauses) or that it authorised them to issue sub-licences of the sort that US Games now claims to own. The reference to trade marks** is irrelevant and just padding to bolster their dubious claim to copyright. And finally, what the hell does 'effectively' mean? Either US Games holds a valid licence or it doesn't. If they are claiming some sort of implied licence, or some species of estoppel, then they are on dodgy ground and this would most certainly need testing by a court to be valid.
So to summarise what I think is the position today:
- UK Copyright in the Coleman Smith drawings lasts until 31 December 2021.
- That copyright was owned by Arthur Waite and so permission to use the images should be addressed to Arthur Waite's estate, in the person of JD Semken, if they can be found, or if not, then use the orphan works licence route
- I am not at all convinced that US Games Systems Inc actually owns the rights to Waites's work within the UK. Their stated chain of entitlement is missing key links and is full of the sort of obfuscation which signals bullshit
* Note that the 1862 Fine Art Copyright Act did not include engravings. They had already been covered by the 1842 Act (section VI) provided that they were contained within a book, such as books of maps which were very popular at the time. Coleman Smith's drawings would probably have been treated as engravings under the 1842 Act once they were embodied within the Waite book because with the printing technology of the time, that is how they would have physically existed.
**I'm not sure how true the statement about being the holder of trade marks throughout the world is, if by that they mean they have registered the marks in all or nearly all the roughly 180 jurisdictions which would comprise 'worldwide'. US Games certainly own a current EU trade mark registration (EU013633301) for 'Rider-Waite' in classes 16 and 18 (playing cards, tarot cards, picture cards), and Random House own a series of two marks ('Rider Waite Tarot' and 'Rider-Waite Tarot') in class 16 which are registered as a UK trade mark (UK00002163020). Presuming that US Games also have a corresponding valid registration in the USA, then maybe that's what they rely on. Of course a trade mark registration of that sort would have no bearing on the use of the various phrases within a book, or indeed here on the forums.