Arthur Waite/ Pamela Coleman Smith Cards

[Helenoran462]

Hello, Andy-

A similar sort of question was asked of you several years ago- you answered it in some depth, and my enquiry relates to that same topic.

https://www.copyrightaid.co.uk/forum/vi ... aite#p2349

My question differs slightly: I'm concerned about the copyright status of black and white images of the cards used as illustrations in Arthur Waite's book 'The Pictorial Key to the Tarot' which has been in the public domain for some time now, (and I am still confused as to when this happened, since it varies depending on US or UK dates) and I don't know if the copyright-free status only applies towards the text in the book or if it includes the illustrations of the cards.

https://en.wikipedia.org/wiki/The_Picto ... _the_Tarot

The illustrations were black and white line drawings, like this...

https://waitesmith.org/wp-content/uploa ... -9-min.jpg

From the research I've done, it seems that the actual coloured Tarot cards come into the public domain in the UK in 2022... 70 years following the death of the illustrator Pamela Coleman Smith. Would that also apply to these images in the book written by Arthur Waite? This was discussed in depth on a Tarot forum, but no one seemed to know for sure- although the general feeling was that the black and white images are now public domain.

The reason I'm asking is because I'd like to use them to accompany illustrations in a fictional book I'm working on; they would be photographic montages of readings which one of my characters does. (I can provide a jpeg if necessary.) I'm worried if I write to US Games to ask permission, they are going to ask ££££ which I simply cannot afford- I'm looking at self-publishing, which is going to cost me a fair bit anyway!
I was really hoping to get the book finished and to a publisher by next year, and I really hope I don't have to delay it by another year

Thanks so much for any advice- your help has been invaluble for my other posts!

[AndyJ]

Hi helenoran462,

From the frontispiece of the Waite book, it would appear that Coleman Smith is being acknowledged as the author (or possibly joint author) of the illustrations in the book, and so since the book was published in the UK, UK law will apply because she was a British resident at the time, irrespective of who or where the actual copyright owners are located today. As I explained in the earlier thread I think it is pretty certain that copyright in the illustrations has expired within the USA, but copyright in the illustrations (but not the text) remains in force here in the UK, because Coleman Smith died later than Waite. As you recognise, the term of copyright based on Coleman Smith's lifetime plus 70 years does not expire until 1 January 2022.

So in theory you need permission to use any of the book illustrations. However, from my reading of the US Games Systems Inc web site, they are only claiming copyright in the tarot card packs which they sell, and so you don't need to involve them, as the book illustrations are separate works. Ideally you need to find Pamela Coleman Smith's heir for permission. According to Wikipedia

She never married, and she died penniless in Bude, Cornwall on 18 September 1951. After her death, all of her personal effects, including her paintings and drawings, were sold at auction to satisfy her debts.

This rather suggests there may not have been an heir and so your best bet, having confirmed this, is to get an Orphan Works licence from the IPO. The application fee is £20 for one work, and goes up in steps (for example 10 works would be £40) depending on the number of works (ie the number of individual illustrations) you wish to use. On top of that there will be the licence fee itself, which you will need to ask the IPO staff about. However, given that we are within 26 months of the expiry of the copyright, I don't think the licence fee will be that much.

I hope this answers your question.

[Helenoran462]

I'll try your suggestion and apply for an Orphans Work License, thanks for that link! I went through my twenty-four illustrations, and discovered they contain a total of 160 individual cards, (ouch, if the charge is for each one separately.) Since some cards are used more than once, I'll need to find out how the IPO deals with that as far as their fees go.

I also found this info on https://www.sacred-texts.com/tarot/faq.htm#EU1909

"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)"

I did a search on the Writers Artists and Their Copyright Holders website for the name Semken, but nothing came up.

I also found the Random House copyright request form, and I'll email them as well to see what their verdict is as far as the book goes... just in case the ownership of the illustrations was given to Waite and they have proof of it.

Thank you again for all your help, Andy- it's very much appreciated! With the Orphans Work License I have something to go on now.

[Nick Cooper]

I looked into this previously, and what I think the situation is is covered on the Talk page for the Rider-Waite deck Wikipedia page.

The bottom line is that Waite commissioned Colman Smith to do the artwork for the deck, and it is contended that Waite owned the copyright as the commissioner, but obviously its copyright is reckoned from Colman Smith's death in 1951. US Games claim to own the rights to the artwork via Waite's estate. The problem is that nobody seems to have come up with any document establishing an assignment of the copyright from Colman Smith to Waite.

There is also the fact that clause (a) of Section 24 of the 1911 Act states that in the case of rights assigned to someone else before commencement of the Act, although the new longer period of protection applied overall, in the absence of an express agreement the rights reverted to the author on the date the prior period of protection would have expired. The new express agreement between the author and the rights hold could only happen after the rights holder gave notice to the author, "not more than one year nor less than six months before the date at which the [original] right would have so expired, and must be sent by registered post to the author, or, if he cannot with reasonable diligence be found, advertised in the London gazette and in two London newspapers."

Under the 1842 Act the original copyright term would have expired 42 years after publication [1910], or seven years after the author's death [1951], whichever was the latest. In this case that would have been after the end of 1952 or 1958 respectively. In other words, Waite's estate would have owned the rights until the end of 1958, but unless there had been a new agreement between it and Colman Smith's estate, they would have reverted to the latter. In all its claims of owning the rights now, US Games has never mentioned such a new agreement, let alone produced one.

[AndyJ]

Hi Nick,

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.

[Nick Cooper]

Thanks for that, Andy. Mea culpa for incorrectly relying on the 1842 Act rather than 1862 (D'oh!). I suppose there might be a question as to whether the 1911 Act could have over-ridden the 1862 Act as regards the automatic transfer of copyright in the case of a commission, given that section 24 of the 1911 Act specifically talks about the author rather than the copyright owner. I would guess that it was such an obscure point that it may never have been tested in court.

At the end of the day, though, and as you say, US Games's claims do seem decidedly shakey, and the rights are probably retained by the Semken family. Luckily it's a very unusual surname, and a check of the registers and newspapers shows that the first would have been William Richard Semken, a solicitor born 24/12/1886, died 30/07/1970. He married in 1916 and had two sons, the youngest being John D Semken, a barrister, who was born in 1921 and only died in 2015:

https://www.telegraph.co.uk/obituaries/ ... -obituary/

He had himself had three sons, born between 1955 and 1962. The eldest is a practising barrister, and the youngest a company director and project manager.

[AndyJ]

Hi Nick,

You've been very thorough with your research! I only did a quick google for JD Semken and didn't immediately find anything promising. In line with what I said earlier about approaching Semken or his heirs, I will pm Helen with Semken's oldest son's contact details and she can take it from there.

Hopefully she will let us know in due course how she gets on.

[Nick Cooper]

Yes, I thought it best not to post the details of the surviving members of the family here for privacy reasons. Obviously the barrister would be the best first port of call!

[Helenoran462]

Andy and Nick-
Wow, thank you so much for all this information- what an amazing amount of work you've both done!

Sincere apologies for not replying more promptly- I've been in Manchester and away from my PC since Thursday and have only just seen this.
I'll contact the address you've provided me with, and I will definitely let you know how that turns out.

Helen

[Helenoran462]

Andy and Nick-

I did contact the barrister whose name you provided me with three weeks ago, and so far I've heard nothing back.

I'm not sure how to proceed now... after the holidays are over I think I'll try phoning the offices of the firm he is listed with to see if he is still working for them, and make sure if I have the correct email address.

[AndyJ]

Hi Helen,

That's disappointing. As he is now aged 64 it's possible he's either retired or is only working part time. I think a phone call to his chambers would be the best next step, as you will then know if he is still working there. Plus if you are able to speak to him, you should be able to quickly resolve the issue of whether he thinks he has inherited the copyright, whereas if he has seen your letter, but is unsure where matters stand, he may have intended to do some research before replying.

[Helenoran462]

I tried emailing one more time, and yesterday phoned the office and they told me he retired, probably back before October... the woman I spoke to wasn't entirely sure since she started there about then, (his photo and details are still on what I am guessing must be a cached version of their website.)

I can't find any other information for him, nor the man I presume is his brother, who is director of a company with no contact details or website.
I'm not sure how to proceed from here, because there is so much confusion around this issue, with so many differing opinions as to when the public domain status comes into being. The black and white line illustrations in the book (published 1910) may or may not have a different date as to the actual cards themselves, but no one is willing to take the chance of using them and having US Games come chasing after them.

My feeling is that if the barrister did inherit Sir Arthur Waite's copywrite, then wouldn't the date of Waite's death be the one the public domain status is based upon? Since Pamala Coleman Smith died in poverty, surely she was not receiving royalties from sales of the book? (or cards, for that matter.)

I shall keep trying to find out more if I can, because I really do not want to have to wait until 2022 to complete my novel! I don't think I would get anywhere by contacting US Games... they have been protecting their ownership of those cards for so long, they're not going to let go now that they've only got such a short time left.

I did have one hopeful idea... if I were to get a copy of the original 1910 book, would I be allowed to scan the images from that and use them? The book has been published repeatedly over the past 100 years and is even online as a PDF, so by that I'm guessing the text iteself is in the public domain... but would this not apply to the illustrations in it?

Sorry for going on about this, Andy- I am so confused!

[Helenoran462]

I just had another barmy idea... there was another book, copied from Waite's- by an American author L.W. de Laurence in 1918.

According to this site- at the bottom of the page it says "This work was published before January 1, 1925, and is in the public domain worldwide because the author died at least 100 years ago."

https://en.wikisource.org/wiki/The_Illu ... _the_Tarot

It would be easier to find a copy of this rather than Waite's, (those are collector's items now) and so would I be able to use the illustrations from this book? It is also available as a pdf.

[AndyJ]

Hi Helen,

I'm sorry to hear you have had no luck with contacting the barrister Christopher Semken. I believe that going through his old chambers still presents the best chance of contacting him. Try phoning again and ask to speak to Chambers Manager Kerry McLean. If you can speak to Mr McLean, explain that you need to contact Christopher Semken on a private matter and ask if the Chambers would be prepared to forward any correspondence to Mr Semken. Hopefully you still have the contact details for the Chambers concerned.

I really think you should dismiss any thought about involving US Games. As I indicated earlier while they may have a valid licence to exploit the illustrations in the form of actual tarot cards in the USA, I very much doubt if that licence also extends to the UK or Europe, and I am almost certain that it would not permit them to sub-licence any of the illustrations for purposes other than making actual tarot cards. And undoubtedly they would love the opportunity to charge you quite a lot of money even if they knew they didn't really have the right to issue you a licence. Hence your best bet is to get permission directly from Waite's putative heir, Mr Christopher Semken. If despite your best efforts you really can't contact him, or he denies all knowledge of copyright ownership, then your next best route is to get an orphan works licence.

As for your second posting, I would treat the copyright statement in that Wikisource article with a degree of caution. While that book is out of copyright in th USA, just as we know the Waite books are, this is due to the different system for copyright registration which applied in the USA at the time. But that does not them automatically mean that Coleman Smith's illustrations are in the public domain worldwide, assuming of course that the de Lawrence book uses the Coleman Smith illustrations.

The prize you seek is tanalizingly close and I'm sure you will be able to get the necessary permission or licence in order to get your book out this year. Have faith!

[Helenoran462]

I do still have the contact details for his chambers, so I'll try that tomorrow... and I will avoid contacting US Games, too. I did think they'd probably attempt to charge me for using the images regardless of the status.

Thanks so much for all your extremely helpful advice, Andy- I really do appreciate it, and if I ever do find out anything about the copyright I will let you know!