Moses Pelham woman attains right to sampling: Expert Interview – SPIEGEL ONLINE

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  Kai Stuht

   
   Sebastian Mollmann worked as a lawyer in Cologne. He specializes in copyright and advises among other producers, musicians and record companies. In the nineties, he rapped himself under the name “Schivv” as a member of the Cologne hip hop crew “The Coolen sows”.


 

SPIEGEL: Mr Mollmann why decides the Constitutional Court about art and music? Normally there Atomausstieg and euro rescue are still negotiating

Sebastian Mollmann:. The Federal Constitutional Court will decide if people feel violated their fundamental rights. In this case, Moses Pelham has been injured by a judgment of the Bundesgerichtshof (BGH) felt and lodged a constitutional complaint with the Federal Constitutional Court. The task of the Constitutional Court is to bring conflicting fundamental rights into line.

SPIEGEL: To what fundamental rights we went

Mollmann: The court had to decide whether the fundamental right to artistic activity of Moses Pelham predominates , or the property rights and interests of exploitation of power plant. And so the question of whether the sampling is to be considered already as artistic activity. The Constitutional Court has now expressly affirmed. I think hip-hop artists and producers will parry across the country

SPIEGEL ONLINE:. Why

Mollmann: through this judgment, the recycling culture of hip-hop, including the art form of sampling – that is, the search and retrieval of hidden musical pearls, isolating often obscure sequences from these photographs, the cutting, the recomposition, pitching, editing and mixes – now obtained constitutional recognition. Part of Rapkunst is to enter into an artistic confrontation through the use of already existing recordings – and to convert the existing art in a different art form. So you create art from Art

SPIEGEL ONLINE:. To what extent has encouraged the ruling this type of art

Mollmann ?: the Supreme Court ruled that in addition to the rules already existing one sample may only be used without the consent of the copyright holder, if you can not replay itself this sample. The Constitutional Court has now been found in a “art specific consideration” that it does not depend on it, and so into account the specific characteristics of the art form hip-hop. Because it it’s all about, to use the original. The sample used by Pelham was very short and for power plant no damage is characterized according to the judge emerged so Pelham artistic freedom outweighs the exploitation interests of power plant in the specific case

SPIEGEL ONLINE:. Pelham had taken over from power plant only two seconds off the track. Does this mean that the length of the sample plays a role

Mollmann: There has been among many musicians the mistaken belief that an unlicensed sample use was lawful, if, for example, less than four seconds or only a certain number of strokes a recording accepts what so wrong. The ruling by the Federal Constitutional Court, the brevity of the samples used but now plays a role. Unfortunately, it does not contain any concrete knowledge about how long may be a sample and how long not. But what can be derived from the decision: A legally impeccable sample to which it has not obtained the consent of the copyright holder, should have a small amount and a timing and content distance Original painting exhibit

SPIEGEL ONLINE : Can Pelham song distribute again

Mollmann: First, the Supreme Court will have to decide, taking into account the findings of the Constitutional Court. This will certainly take a few more years

SPIEGEL ONLINE:. So it was only a symbolic victory for Pelham

Mollmann: That’s why it went so well. Pelham wanted to sampling as an art form acceptable can appreciate it as an artistic achievement. After the Supreme Court ruling of the sampling is now officially an artistic activity. This is significant, because until sampling was considered rather than theft or copy. Now there is a fundamental right to sampling. The Federal Constitutional Court has literally ruled that the artistic freedom evenly also include the right to artistic approaches existing phonograms

SPIEGEL ONLINE:. Why is this sampling just in hip-hop so important?

Mollmann: Hip Hop originated in the African-American ghettos, where it lacked much. It was a culture of the underprivileged. So you took what was already there, the jazz, the funk, we came to terms with their own music history and transformed it into an urban, contemporary context. In hip-hop was recycled to create its own identity. One of the first relevant hip hop songs was indeed “Planet Rock” by Afrika Bambaataa. And there was, ironically, a mash-up of two Kraftwerk song. So power plant is part of the history of sampling to

SPIEGEL ONLINE:. this very reason Pelham would have to just ask

Mollmann: If he had. The Constitutional Court, however – quite friendly artist – said it would restrict him in his artistic freedom if he would only ask. The moment of composition is thus after the Constitutional Court no, one wants to be burdened with legal preliminary questions considers that disrupts the flow. Pelham has then yes just wanted his own words in his sample database for a cold rhythm sequence. If he had only at power plant lawyers to call, he would have been inhibited in the opinion of the Court in his artistic activity

SPIEGEL ONLINE:. you were before your career as a lawyer himself Rapper, as part of Cologne Department the Coolen sows. Do you then also sampled without permission

Mollmann: At the time, everything was not as legalized as now by the power plant and also the Bushido process. For up to the two, there was no court discharged sample issues in Germany. There were already more freedom during sampling, it was an art form that was tolerated. But today is any artist who wants to reach a wider audience, well advised to first obtain the consent of the copyright holder.

SPIEGEL: not Threatens after Pelham judgment rather the opposite? artists that just no longer obtain permission

Mollmann: It is not excluded that producers and artists will be trusted more in the future. In my view, the court’s decision only the micro using the overpass applies but with time and substance to the original distance, so as seen in a different genre. And further, the approval-free acquisition of tunes remains copyright law excluded. Because the Constitutional Court but has made no statement on the scope of samples, may be inferred from any final legal certainty. It will continue to be individual decisions.