4.2.2-3 A photo given by an author to a third party is marked with ‘not for further use. May this photo be sold to someone else by the third party?


Generally speaking, such a notice on a copy of a work is irrelevant because of the principle of exhaustion and the limiting provisions. This is different if the photo has not yet been published for the first time by the author and if the author gave the photo to the third party under the explicit condition that the photo may not be distributed further. The author has the exclusive right of first publication (Art. 9 para. 2 CopA); this is the author’s moral right and is not affected by the principle of exhaustion (cf. Barrelet/Egloff, Urheberrecht, 3rd edition, 2008, Art. 12 N. 9a and 10).