The Copyright Battle Over a Tarot Card Deck

Tarot cards have been around since at least the mid 1400s and have been used in divination since at least the late 1700s. For centuries, they have enjoyed great popularity both for various games and for the use in fortune telling, depending on the deck. 

Uses aside, tarot decks are also works of art, with a wide variety of styles, themes, and concepts to choose from. Those include themes such as Disney villains, horror movies and vintage tattoos to name just a few. 

However, the most popular decks, especially among beginners, are the classical style decks. Of those, the most popular is the Rider-Waite tarot deck, which was first published in 1909 and illustrated by Pamela Colman Smith. 

While it might seem like that deck should be well past any copyright controversy, a case before the Copyright Claims Board (CCB) deals directly with the 114-year-old deck. Two tarot card publishers are battling it out to determine who, if anyone, can own this work. 

It is an interesting case that delves into the questions about building work on public domain content and when one’s additions and changes amount to copyright infringement.  

It is also a case that will likely be decided by the CCB, making it one of the most complicated cases the board has addressed in its less than two years of being open. 

Tarot, Copyright, and the Public Domain 

Note: All the images from this article were taken from this Amazon listing. Though the deck box appears identical to the Siren box and it is an enhanced deck similar to Siren’s, it isn’t possible to verify 100% that these are Siren’s cards since Siren is a wholesaler and the cards are sold under different names.

The claim was filed by Siren Imports in December 2022. They are targeting a company named VHNS. Both companies sell tarot decks online and both offer versions of the Rider-Waite tarot deck. Siren, according to their claim, has been selling their version since 2019.  

In the claim, Siren acknowledges that the original artwork by Smith is in the public domain. However, they allege that they created “enhanced” versions of the artwork that were used in VHNS’ version of the deck and used their creation. They also claim that other elements were copied including design choices, color schemes, fonts and more. 

VHNS, however, has responded to the claim. They say that they only used public domain images when designing their cards. Further, they claim that the changes and alteration Siren made are not creative enough to qualify for copyright protection.  

To prove this, they point to another company, US Games, which has a long history of seeking licensing for reprints of the Rider-Waite tarot deck. However, according to VNHS’ response, the company does not claim ownership of the images, just other elements of the design. 

VHNS then goes on to say that their design choices were different from Siren’s, including completely different fonts and backs. VHNS then argues that other similarities, such as colors and general aesthetics, do not qualify for copyright protection. 

Both sides also allege that the other has filed copyright notices or taken other action that has limited their ability to sell their products. Siren says that a false takedown notice filed by VHNS resulted in their Amazon listing being removed, costing them approximately $25,000 in sales. VHNS says that, due to actions by Siren, they have not been able to sell on Amazon or other such platforms since June 2022.  

The two sides held a settlement conference in January of this year. However, a settlement was not reached. A second conference is scheduled for later this month, though the case is already moving forward, with claimant written testimony due by late March. 

Analysis of the Case 

Unfortunately, I cannot perform a direct comparison of the decks at issue. The respondent’s deck has been removed and the scans provided in evidence are low-quality.

I cannot make out the details needed to determine if they used the “enhanced” images created by Siren. 

Please note that I’m using images from Amazon to illustrate the article. Though Siren is a wholesaler, I have no way to confirm that these are Siren’s cards specifically.

However, that may not be particularly important. Since both sides acknowledge that the original images are in the public domain, the main question is whether Siren’s enhancements to the original images qualify for copyright protection. 

That is going to be a difficult argument to make.  

As we saw in the Feist Publications, Inc., v. Rural Telephone Service ruling from 1991, copyright does not protect work. It protects creativity and originality. Simple reproductions of a copyright-protected work do not qualify for separate copyright protection. 

Siren will be tasked with showing that their additions to the public domain images were creative enough to be protected by copyright and that those protectable elements were copied by the respondent. Though the bar for creativity is low in these cases, simply fixing printing issues or adding a solid fill to an area is not likely to meet the threshold. 

In that regard, it is similar to another recent copyright battle, this one over “transparent” phone cases. There, JerryRigEverything accused Casetify of ripping off their designs. While they acknowledged that the actual phone internals are not protectable by copyright, they had made significant style changes and added comedic elements that seems likely to hold up.  

However, Siren was likely limited in what changes they could make. Though they market the cards as enhanced, they claim that it is still a Rider-Waite tarot deck. Any significant changes would make that statement untrue. It is going to be a tough job to convince the board that the changes qualify for copyright protection and that their copying constitutes infringement. 

To be clear, it is possible. But it is likely an uphill battle. 

That said, even if they can show it, they are unlikely to receive the $30,000 in damages they requested. The reason is that the CCB has a damage cap of $15,000 per work and, since only one work is at issue, that is the maximum that can be awarded. 

However, even getting to that is likely going to prove difficult. 

Part of that is because neither party is seeking damages related to the alleged false takedowns (A claim for misrepresentation under 17 U.S.C. 512(f) as the CCB refers to it). This is especially odd for Siren, who claims that a takedown filed by VHNS cost them $25,000 in sales. 

If that is provable, that would seem to be an easy claim to sustain. If both sides agree that the original images are public domain and there is no evidence that Siren infringed VHNS and the latter filed the takedown notice, that would be a clearly false notice with significant potential damages behind it. 

Instead, the case is only being pursued to deal with allegations of infringement. This means that, if Siren cannot convince the CCB that their modifications were creative, protectable by copyright and were copied, there is likely no damages to be won at all. 

Bottom Line 

Reading everything in this case, I get the sense that both sides recognize just how complicated and nuanced this area is. Though both sides clearly feel that they are in the right, it is equally clear that both recognize that this is not a straightforward case. 

Part of the proof of that is both sides are represented by attorneys, not a common practice at the CCB, and that both are presenting the case very similarly to how they would a case in federal court. 

However, that makes it seem odd that this is a case before the CCB at all. The amount of money at stake and the complicated issues of what is and is not copyright protection make the CCB an odd choice, especially since both sides are going through the expense of using lawyers regardless. 

But just because it is an odd choice, and an atypical case does not mean it is a bad choice. As we have seen repeatedly, the CCB has done well weighing in on complicated copyright matters and taking such issues seriously. I have no reason to doubt that the board will do an admirable job. 

Still, it is going to be interesting to see what kind of analysis the CCB performs in this case and what kind of determination it hands down. This is not the typical CCB case, and it is one that both copyright watchers and tarot card fans will likely want to follow closely.