2.1.1 Intellectual creation

A protected work must be an expression of the human mind. Consequently, everything that is not created by the human hand is not a protected work.

Works excluded from protection are therefore purely natural phenomena (e.g. stones, plants, etc.) or purely machine or computer-generated results. However, a work can exist when something new is designed from objects such as these (e.g. a painting or a photograph of a plant, or an object designed by human hands with a 3D printer) through human intervention.

The work in question must also be a creation. An intellectual creation is the “manifestation of a human expression of thought”. However, that often does not help in specific individual cases. Instead, it is more useful to ask whether a person has deliberately created something which did not previously exist. Then this can be considered an intellectual creation. It is more difficult when there has been something similar in the past or a person has (re)used templates, forms, styles, etc. Then the question needs to be asked whether the afore-mentioned has simply been reproduced or imitated, or whether new ideas and thoughts have awarded it creative expression.

The screen prints of Andy Warhol (e.g. Marilyn Monroe or Mao) or the photo of Bob Marley with windswept dreadlocks taken by a Swiss photographer at an open-air concert are good examples of this. Both cases are the expression of the human creative will to create something new or “to put something which has already taken shape in someone’s head to paper” (cf. the decision of the Federal Supreme Court 130 III 168, 175). The same can be said for the machine sculptures created by Jean Tinguely, which reflect the artist’s thoughts through their playfulness.