Vermeer’s The Astronomer: Navigating Between Patent and Copyright
Science and art along with the corresponding intellectual property laws have shared a “historic kinship.” Finding the protection of science and art critical to the success and stability of the nation, the Founding Fathers granted Congress with the power “[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”. (U.S. Const. art. I, § 8, cl. 8). With the enactment of both copyright and patent laws under this constitutional authority, Congress has sought to address the “difficult balance between the interests of authors and inventors in the control and exploitation of the writings and discoveries on the one hand, and society’s competing interest in the free flow of ideas, information, and commerce on the other hand.” (Sony, 464 U.S. at 429).
Vermeer’s The Astronomer exquisitely represents this unique relationship between art/science and copyright/patent law. Depicting a scientist deep in thought, the painting is a tribute to the scientific discoveries of seventeenth-century Holland as well as to one man’s artistic genius. Despite this historic kinship however, legal scholars and practitioners have long debated the precise boundaries between these two legal frameworks, especially concerning the differences regarding subject matter and scope of rights protected. As a bridge between science and art, Vermeer’s The Astronomer illustrates the somewhat elusive boundary between these two different legal approaches for preserving and encouraging the creation of intellectual property. While the painting itself precedes modern copyright and patent law, the principles supporting these legal frameworks reach back centuries as they address how humanity thinks and creates.
Vermeer & The Astronomer
Johannes Vermeer (1632-1675) was one of the principal Dutch genre painters of the seventeenth century. While many of his paintings have reached iconic status in both the public and scholarly communities, many important details of Vermeer’s own life are not well known. (Wheelock 1995, 1). Vermeer’s oeuvre, an estimated 43-60 paintings, is replete with “eternalization[s] of seemingly inconsequential moments” of daily life in seventeenth-century Delft. (Franits). However, in the hands of Vermeer, the scenes “take on almost metaphysical significance.” (Wheelock 1995, 6). Vermeer’s paintings convey meaning and moral gravity by emphasizing the psychological impact of light, color, and perspective. (Wheelock 1997, 5).
Like a scientist, Vermeer carefully measured the spatial relationships and planned the precise proportions within his paintings, achieving a certain sense of serenity and balance. Some scholars have proposed that Vermeer may have used a camera obscura to execute his works in such a manner. (Franits). A camera obscura is a darkened chamber with a small hall in one of the walls. As light passes through this hole, it is projected upon a back wall, displaying an inverted and reversed image of whatever is outside the box. Some scholars argue that such a device assisted Vermeer in composing his works by collapsing three dimensions into two via the projection on a screen. (Steadman 2005, 308). Vermeer may have then traced or studied the projected images to determine the shapes and negative spaces between objects. (Steadman 2005, 308). Disputing such a theory, other scholars have cited an absence of any evidence that Vermeer even owned a camera obscura and instead have argued that Vermeer used certain artistic techniques to calculate such proportions and spatial relationships. (Liedtke 2000, 247).
In addition to technique, The Astronomer reflects the artist’s scientific interest and the recent scientific achievements of his native country. Signed and dated 1668, The Astronomer depicts a man engrossed in a scientific investigation, searching for answers to questions relating to this world and the heavens. Sitting at a desk and wearing a loosely fitting blue robe, the man’s attention is toward a large celestial globe displaying the constellations of the Great Bear, Hercules, and Lyra. The specific globe shown in the painting was published by Jodocus Hondius in 1618. (Wheelock 1997, 56).
On the table, along with the globe is an astrolabe, a pair of dividers, and several books. The open book has been identified as Adriaen Metius’ volume on astronomy and geography, opened to the first pages of the chapter “On the Investigation or Observation of the Stars.” (Welu 1986, 263). Metius wrote this book for both the professional and the amateur as a guide for using certain instruments to study astronomy, in this specific case the astrolabe, which also appears in the painting. The particular text on the opened page discusses the origins of astronomy: “The first observers and investigators of the situation and course of the stars have been, as history points out, our ancestors the patriarchs who through inspiration from God the Lord and the knowledge of geometry and assistance of mathematical instruments have measured and described for us the firmament and the course of the stars.” (Welu 1986, 266). The connections between the astrolabe, the globe, and this particular section of Metius’ book reveal Vermeer’s “calculated approach to the selection and arrangement of objects in his paintings.” (Welu 1986, 265-266).
Vermeer’s The Astronomer, along with The Geographer, is a tribute to the intellectual curiosity of the seventeenth-century Dutch Age of Discovery as “visible incarnation[s] of thought.” (Littlejohn 1996, 268). The painting portrays two different types of seventeenth-century knowledge: the old and the new. The painting on the wall behind the astronomer depicts the finding of Moses, whom the Dutch associated with navigation with his floating down the Nile as an infant in a basket or leading his people through the Red Sea. (Liedtke 2008, 150). One scholar has identified the astronomer as Anthony van Leeuwenhoek, a Delft amateur scientist, who was known for not only his invention of a microscope but also his interest in navigation and astronomy. (Wheelock 2004, 106-108). However, not all art historians agree with this identification, as one scholar emphasized that the painting does not resemble other portraits of van Leeuwenhoek. (Liedtke 2000, 262).
Defining Intellectual Property in a Painting
“Intellectual property” refers to “creations of the mind,” such as scientific inventions and artistic works. Patent and copyright laws protect these creations so that people may earn recognition or benefit financially from what they created. In its broadest sense, this system of laws aims to foster creativity and innovation by balancing the interests of innovators, creators, and the public.
A patent is an exclusive right granted for an invention, which is a product or a process that generally provides a new way of doing something or a technical solution to a problem. (35 U.S.C. § 101). A valid patent bestows upon its holder the right to take action against anyone who “makes, uses, offers to sell, or sells any patented invention within the United States” during the term of the patent, unless authority to do so is secured from the patent holder. (35 U.S.C. § 271(a)). Copyright is a form of protection granted to authors of “original works of authorship” from the time the works were created in a fixed form. (17 U.S.C. § 102). Copyright law provides the owner of the copyright with the exclusive rights to reproduce the works, prepare derivative works, distribute copies or perform or display the work publicly. (17 U.S.C. § 106).
Despite the broader policy goals, the inherent differences between science and art have prompted different legal approaches in how patent or copyright law protects eligible works and incentivizes additional creations. The Astronomer, by blending science and art, serves as a backdrop to illustrate the legal and policy differences between copyright and patent.
Eligible Subject Matter
Consulting the globe and the open book, Vermeer’s astronomer appears lost in thought with a proposition concerning the heavens forming in his mind. But what physical form will that idea take? While both copyright and patent laws seek to protect and encourage “creations of the mind,” each law protects different physical manifestations of these ideas.
The primary eligibility requirement for copyright protection is that the work must be an original work of authorship, meaning that it is independently created by a human author and possesses at least some minimal degree of creativity. (Feist, 499 U.S. 345-46). Patent law imposes a higher bar for patentability: the invention must be useful, novel (invention as a whole does not already exist), and nonobvious (cannot be an obvious improvement or change to something that already exists). (35 U.S.C. §§ 102, 103). Under these different standards, patent law essentially protects the underlying idea, procedure, or process embodied within the invention itself, while the Copyright Act specifically excludes ideas, procedures, and processes from copyright protection, extending protection only to the particular expression of the idea. (17 U.S.C. § 102(b)).
The distinction between protecting the form of the expression as opposed to the underlying idea reflects the differences in the inherent processes behind science and art. Science does not operate in a vacuum but depends on using and improving the ideas, processes, and procedures created or discovered by another. Patent law serves to protect this particular subject matter by granting the inventor the proper recompense for her idea and work that others would likely utilize for their own. Alternatively, art fundamentally operates as creative and original expressions of an idea. If copyright law were to protect the idea in addition to the particular expression, then the law would hamper instead of foster creative output. Copyright, therefore, protects only the original expression of that individual author.
The operations and work of the artistic community demonstrate the significance of differentiating between the expression and the idea within intellectual property law. The idea of the scientist advancing the discoveries and achievements of seventeenth-century Holland was a common theme among the artistic community in which Vermeer worked. Cornelis de Man, a contemporary of Vermeer, painted Geographers at Work (c. 1670) using many elements from The Astronomer. (Waiboer 2010, 55). In Gerrit Dou’s Astronomer by Candlelight (c. 1665), a man gazes into the distance with his hand on the globe. His face is in the light while darkness surrounds him, illustrating the ideathat “ignorance must be dispelled.” (Ducos 2017, 208). If copyright protected the idea in addition to the expression, then these paintings would theoretically have infringed the rights of the original artist, whomever that may be, severely restricting the artistic output of this period.
Term of Protection
The rights under copyright and patent laws have different standards of duration. Copyright protection of an eligible work lasts the life of the author plus seventy years. (17 U.S.C. § 302). The term of patent protection is shorter at twenty years. (35 U.S.C. § 154). A shorter term for patent protection places technical improvements in the public domain more quickly. As mentioned above, science is a cumulative process that advances only if knowledge is shared. The progress and benefits to society that science can provide critically hinge on multiple scientists sharing and testing each other’s work, which cannot always be under the exclusive control of one person. Patent law, with its shorter term, allows scientists and inventors to manufacture, use, and improve upon the older invention more quickly, once the patent term has expired and the invention is in the public domain.
Vermeer’s The Astronomer aptly illustrates the need for a limited patent term and the dependence of contemporary scientific knowledge on the achievements of the past. Some scholars have identified the astronomer in the painting as Anthony van Leeuwenhoek -- a Dutch amateur scientist, who was known for inventing a microscope. (Wheelock 2004, 106-108). In conceiving this microscope, van Leeuwenhoek likely studied the work of his predecessors, such as Galileo, who had invented an earlier version of the microscope. This acknowledgement of the past appears in other parts of the painting as well. The painting on the wall depicting the finding of Moses and his association with navigation inspires the reflections of the astronomer. The astronomer is also consulting the volume by Adriaen Metius, which pays tribute to the accomplishments of the past and their contributions to modern astronomy: “The first observers and investigators of … the stars have been, as history points out, our ancestors the patriarchs who … have measured and described for us the firmament and the course of the stars.” (Welu 1986, 266). Vermeer’s The Astronomer recognizes the debt held by contemporary scientists to earlier scientific achievements, through building upon the publicly available inventions of their predecessors.
While patent law grants the inventor a shorter term, the exclusive control over the invention itself is broader under patent law than under copyright law. A valid patent bestows upon its holder the right to take action against anyone who “makes, uses, offers to sell, or sells” the patented invention. (35 U.S.C. § 271(a)). Copyright provides the rightsholder with the exclusive right to reproduce the works, prepare derivative works, distribute copies or perform or display the work publicly. (17 U.S.C. § 106). A member of the public may use or consumea copyrighted work without permission from the rightsholder while unauthorizeduse of an invention may violate the patent right.
Vermeer’s The Astronomer illustrates examples of both copyright and patent material. The open book on the table, the globe, the chart, the books on top of the wardrobe, the painting on the wall, and even possibly the cloth draped over the table could have qualified as copyrightable subject material. The patentable inventions, such as the astrolabe or the pair of dividers, are somewhat hidden by this cloth. While Vermeer was unlikely commenting on the different ways the public may interact with protected intellectual property, the painting does signify for a modern audience how intellectual property laws may shape the public use of protected works. Patent law, albeit with the shorter patent term and the higher bar of patentability, does restrict the use and therefore accessibility of certain scientific inventions. Without permission, patented inventions are very much “hidden,” during their term of protection.
A Historic Kinship
Vermeer’s The Astronomer illustrates the differences in creation between scientific knowledge and artistic expression and the different legal methods to govern disclosure and access to these works of intellectual endeavor. Despite these differences, Vermeer’s The Astronomer, however, also shows that the borders between patent and copyright are not so clearly defined. Celebrating the navigational achievements of the Dutch in the seventeenth-century, the astronomer has one hand on a globe charting the vastness of the heavens and another hand on a meticulously crafted textile. The artistic creations of man and the scientific investigations which he seeks to discover are invariably linked. Science depends on the inventor’s creativity while artists often rely on scientific methods and processes to create, from understanding chemical reactions of the pigments to calculating perspective for realistic composition. Similarly, legal scholars and practitioners have debated over the relationship between science and art with the copyrightability of useful articles or the patentability of aesthetic features of design manufacturing. Vermeer’s The Astronomer helps to navigate the boundary between copyright and patent law by reminding the viewer of this inherent relationship between art and science.
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U.S. Const. art. I, § 8, cl. 8.
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