copyright music
music/rhythm based level map for the game - copyright issue
<p>I want to create a music rhythm game. </p>

<p>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.</p>

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

<p>Do I need to pay any money to artists in this case?</p>

<p>Thanks a lot!</p>

<p>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 <a href="https://www.copyright.gov/circs/circ14.pdf" rel="nofollow noreferrer">here</a>. They identify as an example "A musical arrangement of a preexisting musical work". One can check relevant US case law <a href="https://www.copyright.gov/fair-use/fair-index.html" rel="nofollow noreferrer">here</a> pertaining to "fair use" (a likely defense in case "copying" was found). The statutory definition of "derivative work" at <a href="https://www.law.cornell.edu/uscode/text/17/101" rel="nofollow noreferrer">17 USC 101</a> is that it is</p>

<blockquote>
  <p>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 <em>in which a work may be recast,
  transformed, or adapted</em>. 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”.</p>
</blockquote>

<p>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 (<a href="http://law.justia.com/cases/federal/district-courts/FSupp/171/580/1555697/" rel="nofollow noreferrer">Dorchester Music v. National Broadcasting Company</a> 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. <a href="http://mcir.usc.edu/" rel="nofollow noreferrer">This resource</a> 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".</p>

<p>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.</p>

<h3>I am not a lawyer; I am especially not your lawyer; this is not legal advice; if you want legal advice, hire a lawyer</h3>

<h1>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.</h1>

<p>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: </p>

<blockquote>
  <p>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</p>
</blockquote>

<p>(17 U.S. Code § 512(c)(1))</p>

<p>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</p>

<blockquote>
  <p>does not receive a financial benefit directly attributable to the infringing activity</p>
</blockquote>

<p>(17 U.S. Code § 512(c)(1)(B))</p>

<p>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 <a href="https://law.stackexchange.com/questions/2296/definition-of-direct-financial-benefit-in-the-dmca-title-17">Definition of &quot;Direct Financial Benefit&quot; in the DMCA Title 17</a> </p>
