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I want to create a music rhythm game.

To play in this game, user needs two files: the map and mp3 sound file. Map files will contain special information about song's rhythm structure and doesn't include any sound. Users will download maps from a game server and upload mp3 sound file from his own library to the game. If user has no such music on device, he can't play.

I want to make money in the game (advertising or hero clothes), but don't sell music or maps.

Do I need to pay any money to artists in this case?

Thanks a lot!

  • Where do you get the "map" from? – Martin Bonner Sep 5 '16 at 12:26
  • Martin, a "maps" can be created by me or any other user in the internet. After this it can be loaded to some remote server. Any other user in the internet can download it from there and use it in the game for free. – vctr Sep 6 '16 at 9:00
  • So the question becomes "does the map violate copyright?". Given how litigious major record labels are, you are going to have problems. – Martin Bonner Sep 6 '16 at 9:41
  • I'm not clear about your question, specifically, what the "map" is. Is the map a different file than the song file? – peacetype Jul 25 '17 at 2:15
  • @peacetype The map file keeps information about music speed and music rhythm structure (actually just the beat). Computers can detect the beat of music too, but men can do this better. Also, users can write the beat as they like and feel it. – vctr Jul 26 '17 at 10:06
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The only reason you would have to pay an artist is if you are creating a "derivative work". The US government's position on what a derivative work is here. They identify as an example "A musical arrangement of a preexisting musical work". One can check relevant US case law here pertaining to "fair use" (a likely defense in case "copying" was found). The statutory definition of "derivative work" at 17 USC 101 is that it is

a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.

One may presume that the map is "based on" a protected work, so the question is whether it is recast, transformed of adapted: presumably, it is. A rhythm can be an element in a finding of infringement (Dorchester Music v. National Broadcasting Company 171 F. Supp. 580: melody and rhythm were fund to be substantially similar). However, many rhythms are centuries old or more, e.g. Dhruva Tala, Scandinavian polska. This resource may also be useful in sorting out musical infringement questions. The essential question is whether the map "copies" a protected element of a composition, and that depends on what the map "is".

Whether or not this matters to you depends mostly on whether you are creating the possibly infringing work (a map). If you are just creating a program that allows people to do something with what they already have, then there is no liability for infringement (just as a person who creates a program allowing sound to be recorded or sound files to be manipulated is not liable for infringement if someone uses the program to infringe on copyright). There are ample non-infringing uses for such a program.

  • thanks for your response. I want to create an editor for creating maps in the game. User can create there any map for any song and use it on own device. Here is no violation. But can he upload map to a game server to share it? Can other users download that map? – vctr Jul 28 '17 at 9:15
  • Creating a map might be prohibited, but that's hard to tell without knowing a lot of technical musical stuff. If creation is prohibited, uploading would be prohibited, but a person might not be liable for downloading if they innocently thought the poster had the right to distribute the derived work (esp. if the work comes with a license to use, as it probably should in some form). – user6726 Jul 28 '17 at 14:27
  • Great answer! It sounds like you would need to very clearly design your software as a program that lets users select their own music files (whatever songs they may have stored on their device) which the program then does processing on (i.e. creating a rhythm map). The UI design should be explicit about requiring the user to initiate the process of creating the rhythm map. – peacetype Jul 28 '17 at 15:33
  • I wonder... Let's say that his software does not violate copyright because it lets users provide their own sound files (potentially copyrighted music tracks) which the software then performs processing/editing on. The user would then be able to share their creations privately without violating copyright, correct? However, if the user took one of their creations and distributed it publically by, say, selling a digital download of the rearranged music track, the user would be in violation of copyright, is that correct? However, the creator of the software would not be in violation, right? – peacetype Jul 28 '17 at 15:39
  • "Personal use" and "private sharing" are not defenses to infringement in the US. If the user infringes by creating a derivative work, then it is an infringement if it's for his use only, or shared only among friends. The pubic / private distinction is not applicable. The software author, OTOH, is not in danger because he wrote a program that could be used illegally. – user6726 Jul 29 '17 at 23:36
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I am not a lawyer; I am especially not your lawyer; this is not legal advice; if you want legal advice, hire a lawyer

Users who upload maps might be infringing and they might not. The creator of the service might avoid liability regardless, assuming they meet certain conditions.

As user6726 said, a map is quite possibly a derivative work and it may or may not be covered under fair use. Even if creating a map without permission from the original artist is copyright infringement, though, the person running the server over which the map files are distributed may have a defense under the DMCA safe harbor provision:

A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider

(17 U.S. Code § 512(c)(1))

This immunity, however, has certain conditions, which you can read all about in the rest of 17 U.S. Code § 512(c). Of special importance here is the condition that the service provider

does not receive a financial benefit directly attributable to the infringing activity

(17 U.S. Code § 512(c)(1)(B))

What exactly this means is up for some debate, but if the majority of the content on the site were infringing, that would probably qualify as "receiv[ing] a financial benefit." See Definition of "Direct Financial Benefit" in the DMCA Title 17

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