Okay, these have been incredibly popular questions, especially in my mailbox from this site. I don't know squat. I don't even really care all that much, except on a very mild intellectual level. I have no intention of designing a deck based on the RWS. I have no intention of designing a deck at all. I'm not invested. Sounds snotty, but it is not meant to be. I have enough fish to fry with all the other things I'm doing to worry about this too much. So I'm going to give you some hints and suggestions so you can do the legwork yourself.
First, if you really want to know, find an intellectual properties lawyer and have them find out for real for you. That is the genuine 'final answer.' All the rest is speculation and opinion.
Second, read this summary opinion. It does a fairly good job, though I will quibble with some points:
1. The trademark US Games holds appears to me to be only on the name "Rider Waite Tarot Deck" and " Rider Waite Tarot" and NOT the images. Trademark is one thing; copyright is another. Look up the difference if you are confused.
2. The PKT (Pictorial Key to the Tarot) was first published in 1911. The KT (Key to the Tarot) was published in December of 1909, though it bears the date of 1910. Perhaps it hit the market a bit sooner than planned. As of 9/13/03, this has been corrected in the FAQ.
3. The sad story about Pamela Colman Smith not getting credit for the cards she drew because of sexism, since the common name is Rider Waite Tarot, is just that - a sad story. The deck was originally advertised as 'Tarot Deck.' See the adverts here. There was no reason to recognize the artist, female or not, in a work for hire. She was a cog in the process. Nowadays we recognize artists as equal contributors to a deck. In 1909, this was not the case. Freida Harris did not get recognition for her contribution to the Thoth deck, commonly known as the Crowley-Thoth Deck. We may call it the Crowley-Harris Deck now, but again, not then. Rider Waite Tarot™ is a registered trademark of US Games. Blame them for the original neglect if you want. Rider-Waite-Smith Tarot (RWS) has become the common reference name to the deck now. The little voices in my head are telling me that US Games is busy registering this name as a trademark for themselves. I might be wrong.I often am.
Third, do some research. The following are basic texts to start with:
The Encyclopedia of Tarot, Volume III, by Stuart R Kaplan, pp. 1-45. Kaplan has given a good overview of Pamela Colman Smith and the Tarot she drew. The letter she wrote to Stieglitz is reproduced on page 33. Hint - if you scan this at say 300 dpi, descreened, it blows up nicely and clearly to a full page. Then you can read the textof the letter. Whatever you think of Stuart Kaplan and US Games, you must read this article! There is a lot of information that you can't find anywhere else.
A.E. Waite A Bibliography, by RA Gilbert, pp 44-47. All you want to know and more about Waite's writings, what they look like, when they were published, and what versions they went through. My information about the KT and PKT comes from here. This is a necessary resource to get a timeline on this deck.
Frank Jensens' Manteia Courier article. I can't recommend this enough. Here is current research on the whole mess of this deck. Read this and learn how things stand right now. Frank is working on an update with more information. This whole issue of this deck's history and printings is murky because so much information has been lost or is yet to be discovered. This article gives you what is known now - no flights of fancy or wish, but the facts as they are known.
These will provide you with a good beginning. If anyone learns anymore, as always, please let me know so I can share it with everyone. That's the whole purpose of this site!