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Assume there is an MMO with a feature similar to Mario Paint Composer, where you can create music with original instrument samples.

Would the players be able to share and play (in-game) the music they create freely? or would there be copyright issues?

Would there be a difference if it's an original song vs a cover of a copyrighted song?

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    \$\begingroup\$ Check the EULA for the game in question. It should have language about this issue, as it depends on the game and what the company wants to allow. I am not a lawyer. \$\endgroup\$
    – Almo
    Feb 20, 2022 at 4:15
  • \$\begingroup\$ What if one were to create the MMO in question? \$\endgroup\$
    – Mergan
    Feb 20, 2022 at 4:44
  • \$\begingroup\$ I suggest you have a look at YouTube's Copyright System Isn't Broken. The World's Is. even if you are not trying to do something like what they do at YouTube. \$\endgroup\$
    – Theraot
    Feb 20, 2022 at 16:07

2 Answers 2

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I'm not a lawyer, you are not my client, this is not legal advice, I will not represent you in court and so on.


I'm assuming that the music/songs will be stored and transferred by your servers. The reason for this assumption is that we are talking about an MMO.


What Almo comments is correct: The EULA for the game in question should have language about this issue.

What if one were to create the MMO in question?

Then the EULA should still have language about this issue. The difference is that you need to create the EULA. Thus, I would suggest to get the help of a lawyer to write it.

The way I see it the main decision is the following:

  • The players agree to transfer ownership of the works to you.

    If the players transfer ownership to you, you will be able to do whatever you want with their work (sans obscuring the identity of the original author, unless they prefer to remain anonymous).

    However, it also means that any works in the game that violate some other copyright are your responsibility. In other words: you would be liable. And thus you must actively police for copyright violations to make sure that does not happen.

  • The players retain ownership of the works, and license them to you.

    If players retain their ownership, you need to include in the EULA that by playing the game they agree to license their works to be used in the game. You will also need language to the effect that you are not responsible for the works created by the players. And then you probably only have to deal with copyright when reported (e.g. notification of infringement).

If you ask for my opinion, letting the players retain the ownership of the works is good for the players (because they have the copyright of their works, they can use them outside of the game) and for you (you are less liable, and it is cheaper to not have to actively police for copyright violations). In fact, if I were a potential player and this game wants me to transfer ownership of any works I create inside of it, I - personally - would not play it, because I would consider this as the game taking my labor.


Then you need to decide what to do when you find a copyright violation. Be aware that whatever you do, it will not erase the past, and copyright holders might still want to collect from you or your players.

Now, that you are aware that there is infringing content in your system, you can remove the work, or you can try to get a license for it. You can guess which is the cheaper option of these two. Getting the rights would be at a loss unless you can monetize the music. Consider also that such monetization might be attractive.


Other decision include:

You need to decide how will the music/wongs be shaded in the game. Will players send messages that allow access to specific works, or will there be a public list from which they can choose what to listen to, or will the game decide what they will listen to from what is available, or something more complex like you can approach another player and listen to what they are listening, or ven listen as they create the music?

And you need to decide If you are going to monetize or not, and how. For example will players pay by listening time or purchase songs.

I mention these decisions because it is not clear to me when you would need performance rights or broadcasting rights. Thus, I'm suggesting you bring this topic to a lawyer.

Furthermore, there might be some caveats I'm missing. For instance you mention original samples, which would have their copyright. Also be aware that the law is not uniform across the world. Ask a lawyer.


Would the players be able to share and play (in-game) the music they create freely?

Will the music/songs be stored or transferred by your servers? If so, you need the right to distribute it (you might need other rights, ask a lawyer). And this are rights you need to get from the players (or get ownership of the work). In other words there must be a legal agreement that grants you these rights, that you present it to the players, and have them agree. Otherwise your servers would be copying and presumably sending the work to another player without the permission of the author, and that is a copyright violation.

Would there be a difference if it's an original song vs a cover of a copyrighted song?

So... Is the player really the author of the music/song? In other words, can the player really give you rights over the work?

I believe that if you take the player authorship on good faith a lawyer can help you right a disclaimer for this situation. However, be aware that if you actively police for copyright violations, that means that you are not taking the player on good faith.

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Disclaimer: Not a lawyer. This is not legal advice, only an opinion on the Internet after doing a modest amount of exploration and research on the subject. Talk to an actual lawyer if you have financial or legal concerns about user-uploaded content in your game project.

If a user makes a cover of a copyrighted song with custom instruments, it falls under a legal gray area due to generative content lacking legal precedent, performance copyright, and mechanical licensing. Ask a lawyer.

The main part of your question that makes this a weird grey area is that you say the users make custom songs with original instrument samples, instead of being able to upload preexisting and possibly copyrighted mp3 or wav files. The question then becomes: would a user making a meme cover of Nickelback with bongo drums still count as infringing on Nickelback's copyright? Or does the copyright only hold on the original performance of the song?

The answer is usually that even a cover of a song still counts as infringing the copyright. In order to legally publish a performance or cover of a song, you usually have to obtain what is called a mechanical or "compulsory" license. You can legally monetize your cover once you've obtained that license. But again, this is custom music generation in a video game, not an actual person performing an actual song cover on video. This falls into a similar vein as the whole issue of who owns the copyright to generative content to begin with (the person who made the content generator? the person who hit the "generate" button? the hosting service? the generator or AI itself?). So where does that leave us?

I don't know. It's a grey area and you might need an actual lawyer to give you the answer. However...

If you allow users to store, distribute and share custom music submissions on the servers, DMCA copyright restrictions concerning the hosting of user-generated content probably apply.

Looking at the current legal landscape around user-generated content hosting and associated copyright issues in the U.S. and Europe, the copyright concerns of allowing users to create and upload custom music in an MMO probably don't differ from existing copyright issues around other games, platforms, etc. that allow users to create and share content and host that content on the platform. Usually this applies to social media platforms like YouTube, Reddit, Facebook, Twitter, etc. that host user-submitted songs, videos and photos. However, it could theoretically also apply to games if they allowed users to host copyrighted music samples on a public-facing server, given that the only main requirements are 1) that a piece of copyrighted content is uploaded by the user and that 2) it is uploaded onto a public Internet domain. In your case, that content would just be hosted on your MMO servers and databases.

In most cases surrounding user-generated or user-submitted content on a hosting platform, a user cannot lawfully create, sell or share copyrighted content with other users without permission, and usually an unlawfully created copyrighted piece of content will be claimed by the financial stakeholder/IP holder for monetary rights/damages. In the United States and the European Union, this is known as a Digital Millennium Copyright Act (DMCA) takedown. (Think copyright claims and DMCA takedowns for using copyrighted music tracks on YouTube.)

How does a DMCA takedown work?

The DMCA notice and takedown process is a tool for copyright holders to get user-uploaded material that infringes their copyrights taken down off of websites, servers, and hosting domains. For an MMO, this would include any hosting servers or databases you would use to store user-generated music. Because the DMCA process is designed to limit the actual liability of your service for (presumably inadvertently) hosting that copyrighted content, you are presumed innocent in the matter, since in most cases you simply can't screen every single piece of content that is uploaded in a reasonable manner. Instead, you will receive a notification of an infringement claim from the copyright holder or a representative agent, and you have the option to respond with either a counternotification defending the material and the user, or to respond promptly by blocking access to the infringing material and removing it from your servers.

tl:dr;

In short:

  • The generation of custom music is probably fine, but definitely exists in an odd legal grey area that the law hasn't caught up to yet.
  • The hosting and distribution of the content is where you get into murky legal territory and may have to research dealing with DMCA claims, on the off chance that somebody uploads Never Gonna Give You Up and you get body-slammed by Sony.

As usual, ask an actual lawyer for definitive answers.

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