NFT vs ZertES: Which Actually Protects Your Digital Art Copyright?

In October 2024, a Zurich-based illustrator named Lena Steiner discovered that someone had minted her entire portfolio as an NFT collection on a secondary platform. The collection sold CHF 12,000 worth of tokens over a weekend. Lena had the original files on her hard drive, creation dates in her cloud storage, and her publishing history across three platforms. None of it was enough. The buyer demanded proof that Lena, not the minter, created the work. She had nothing that a court would accept without dispute.

The problem was not that Lena lacked evidence. The problem was that none of her evidence carried legal presumption. Everything she had was either self-generated or held by a private company under its own terms of service. The minter had blockchain records. Lena had file metadata. In a contested proceeding, that imbalance matters.

What an NFT Actually Proves

An NFT (non-fungible token) is a record on a blockchain. That record certifies:

• That a specific token exists
• Who currently holds that token
• The transaction history of the token's transfers

An NFT does not certify:

• That the person who minted the token created the underlying artwork
• That the minter had the legal right to mint the work
• That the artwork is original
• That the NFT holder owns the copyright to the artwork

This distinction is not a technicality. It is the central legal reality of the NFT market. Copyright in most jurisdictions, including Switzerland, EU member states, the US, and the UK, belongs to the creator, not to the owner of any token referencing the work. Purchasing an NFT, even an authenticated one from an artist's own wallet, does not transfer copyright without an explicit written agreement.

The Copyright Status of NFT Art Under Swiss and EU Law

Under Swiss URG SR 231.1, copyright in an artwork belongs to its author from the moment of creation. The author is the natural person who created the work. A blockchain record stating that a token was minted from a given wallet establishes wallet control, not authorship.

Under EU law (Information Society Directive, Database Directive, and member state implementations), the position is identical. The artist is the copyright holder. An NFT is an asset referencing the work, not the work itself.

For digital artists, this creates two distinct problems:

Problem 1: Proving you are the artist. If someone mints an NFT of your work before you do, the blockchain record shows their mint date. Your creation predates their mint. But without a certified timestamp that predates their blockchain entry, proving prior creation becomes a factual dispute rather than a documentary one.

Problem 2: Proving what you created. AI-generated art produces statistically inevitable similarities to existing human-made works. If an AI system generates something resembling your art and someone mints it first, you need to show that your work existed in its specific form before the infringing work was generated.

What a ZertES Seal Does That an NFT Cannot

A ZertES-certified seal from Swiss Trust Layer creates a qualified electronic timestamp, issued by Swisscom Trust Services (ZertES-accredited ZDA, eIDAS QTSP), that certifies the exact content of a specific file at a specific moment in time.

What this establishes:

• This exact image file, identified by its SHA-256 cryptographic hash, existed at this certified date
• The timestamp carries legal presumption under eIDAS Art. 41 across EU-27, issued by Swisscom Trust Services, a ZertES-accredited ZDA under SR 943.03
• Any third party can verify the certificate independently at swisstrustlayer.com/validate

The blockchain cannot do this. An NFT platform's mint date is a record that a transaction occurred on that platform, maintained by an interested party. It can be challenged. A ZertES-qualified timestamp is issued by an accredited, independent certification authority. The challenger must demonstrate the certification authority was compromised, not merely that the record might be incorrect. That is an exceptionally high bar.

What Would Have Happened Differently

If Lena had sealed her portfolio files with Swiss Trust Layer before publishing them anywhere online, each certificate would have carried a Swisscom-issued qualified timestamp predating the unauthorized mint by months or years. When the buyer demanded proof of authorship, Lena's lawyer could have produced verifiable certificates showing each file's SHA-256 hash and exact creation date. The minter's blockchain record would have been demonstrably later. The case resolves at the letter stage, not in court. The CHF 12,000 recovered, not chased.

The Right Workflow for Digital Artists

Step 1: Create and seal. When your artwork is complete, or at key completion stages, seal the file with Swiss Trust Layer. This takes under two minutes. You receive a PAdES-compliant certificate with a Swisscom-issued qualified timestamp.

Step 2: Mint. Proceed with NFT minting on your preferred platform. The seal predates the mint. Any question about whether you created the work before minting is answered by the certified timestamp.

Step 3: Include the certificate. When listing your NFT, include a reference to the Swiss Trust Layer certificate in the metadata or description. Buyers who care about provenance can independently verify the seal before purchase.

Step 4: Keep your originals sealed. If you create variations, editions, or further works in a series, seal each version. This builds a certified provenance chain that predates any third-party claim.

AI Art Generation and the Precedence Problem

As AI image generation becomes ubiquitous, the volume of plausible similarity claims will increase. An AI tool generates thousands of images per hour. Some will resemble existing human-made artwork by statistical inevitability.

For human artists, the defence against AI-similarity claims is demonstrating that your work predates the AI model or the specific output. A Swiss Trust Layer seal with a certified timestamp is the most legally credible way to establish that precedence: more credible than a social media post, an email, or file metadata.

Do Both

NFTs and ZertES seals serve different functions. NFTs establish collector ownership and market record. ZertES seals establish IP authorship and legal prior art. For digital artists who care about both their market and their rights, the practical answer is both: seal first, then mint.

The Math Lena Faces Now

Lena is now looking at CHF 150,000 to CHF 400,000 in estimated dispute costs if she pursues the case through Swiss courts, based on Swiss Arbitration Association averages for IP disputes of this type. She may recover the CHF 12,000. She may not. The seal that would have made this a one-letter resolution costs CHF 5 per document. That is the entire calculation. Seal your art before you publish it at swisstrustlayer.com.

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See also: ZertES legal framework · eIDAS EU coverage · How to prove you own an idea legally