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School of Law : Prof. Reilly Publishes Digital Sampling Article in MN Law Journal

Prof. Reilly Publishes Digital Sampling Article in Minnesota Law Journal

Associate professor Tracy Reilly’s article on digital sampling has been published in the winter 2012 issue of the Minnesota Journal of Law, Science & Technology.  

The article “Good Fences Make Good Neighboring Rights: The German Federal Supreme Court Rules on the Digital Sampling of Sound Recordings in Metall auf Metall” analyzes the difference between U.S. copyright laws and German “neighboring rights” that govern the infringement of sound recordings. It is available from the journal as a PDF.

The article also is cited in an entry on Wikipedia on the digital sampling case Bridgeport Music, Inc. v. Dimension Films.

Reilly teaches real property and intellectual property courses in the law school’s Program of Law & Technology.  

Read the article abstract:

This article analyzes Kraftwerk, et al. v. Moses Pelham, et al., the recent Federal Court ruling in Germany commonly referred to as the Metall auf Metall case regarding whether the taking of two notes of a digital music sample constitutes infringement of German intellectual property laws. The article compares the German court holding with the most recent U.S. 6th Circuit case on digital sampling, Bridgeport Music, Inc. v. Dimension Films. The article begins with an explanation and history of the technique of digital sampling as used by contemporary musicians. It then explores the similarities and differences between U.S. Copyright law, which protects copyrightable expression in sound recordings and verwandte Schutzrechte or “neighboring rights,” a doctrine that protects the economic components of sound recordings for recording artists and music producers in Germany. The article compares the history of digital music sampling jurisprudence in the two countries, explaining the different ways in which they treat the protection of sound recordings, particularly exploring the ownership rights of music artists and producers who contribute to the creation of sound recordings, as well as the consequences to new musicians who want to sample from previous artists without first obtaining a license from the owner of the intellectual property rights in the recording. The article offers a critique of both court opinions with respect to their treatment of the proper defenses available to sampling defendants, focusing on the de minimis and “fair use” exceptions available to defendants in the United States and the similar Freie Benutzung or “free use” defense in Germany. Finally, the article concludes with a plea to the legislative bodies in both countries to amend these fair use and free use tests in sampling cases to incorporate a standard that allows for secondary uses of sound recordings that are not substantially recognizable.


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