Generative AI is revolutionising the gaming industry, creating vast and unique worlds. But with this exciting tech comes a legal hurdle of AI copyright infringements in gaming. This post is for game developers and includes anyone involved in game creation, from programmers and artists to designers and producers.

Potential AI copyright infringements in gaming

Here’s a breakdown of the key copyright considerations developers need to think about

  • Who owns the AI’s creations. Copyright law traditionally protects human works. But who’s the creator when AI is involved? Is it the developer, the AI, or a combination? This legal grey area needs to be addressed.
  • Derivative works and fair use. AI-generated content might resemble existing copyrighted material. Understanding “derivative works” and “fair use” is crucial. Does the new content require permission or fall under fair use exemptions?
  • Unintentional copies. AI algorithms can unintentionally create near-replicas of copyrighted works. Developers need safeguards to ensure AI outputs don’t infringe on existing properties.
  • Training data. Training AI on copyrighted data without permission can be a copyright nightmare. Developers must source their training data responsibly.
  • Licensing. Generative AI tool licenses might have restrictions on how content can be used. Violating these terms can lead to legal trouble.
  • Public domain usage. Using data in the public domain avoids copyright headaches. However, copyrighted training data requires adherence to copyright laws.
  • Moral rights. Some jurisdictions recognise moral rights, like attribution and maintaining the integrity of a work. Developers using AI content need to be aware of these rights.
  • Open-source openings (and obligations). Open-source AI models can be a great resource, but their licenses often come with specific requirements. Understanding and following these licenses is crucial.

Consequences of AI copyright infringements in gaming

So, we’ve established that generative AI in gaming can be a legal minefield. But what happens if a developer stumbles into copyright infringement territory? Here’s a breakdown of the potential consequences.

  • Cease and desist orders. If a copyright holder identifies infringement (like an AI-generated character resembling theirs), they might issue a cease and desist order. This legally compels the developer to stop using the infringing content.
  • Legal action and damages. Copyright infringement can lead to lawsuits. If a developer loses, they could be liable for financial damages, including lost profits suffered by the copyright holder and the developer’s own profits from the infringing work. These damages can be substantial.
  • Injunctions. Courts might issue injunctions to prevent further use of infringing content. This could force a game developer to pull their game from the market or remove the infringing element, potentially causing significant disruption and lost revenue.
  • Reputation damage. Copyright infringement lawsuits can tarnish a developer’s reputation. Negative publicity and association with copyright issues can deter gamers and potential partners.
  • Impact on funding. Investors might be wary of backing a developer with a history of copyright infringement. This could hinder a studio’s ability to secure funding for future projects.
  • Limited creativity. Fear of copyright legal action might discourage developers from fully exploring the potential of generative AI. This could stifle innovation and limit the creative possibilities within games.

The worst case scenario

In extreme cases, copyright infringement could even lead to criminal charges, although this is less common.

Navigating AI copyright infringements in gaming

Here are a few tips to help you navigate copyright

  • Source your training data responsibly. Use copyright free datasets or obtain proper licenses for any copyrighted material used to train your AI. Partner with rights holders to ensure training data is used ethically and legally. Consider building a “white list” of approved training data sources.
  • Embrace human oversight. Don’t rely solely on AI for content creation. Integrate human creativity to guide the AI and ensure originality.Have human artists and designers curate and refine AI-generated outputs to avoid unintentional infringement.
  • Promote ethical practices. Advocate for clear legal frameworks governing AI and copyright in the gaming industry. Support initiatives that promote responsible and ethical use of generative AI for game development.
  • Keep up with developments on generative AI in game development and how to use it law(fully).

Actions to take next

  • Avoid copyright and licensing issues by having Michalsons review the terms of service and licensing agreements for generative AI tools you use.
  • Ensure you are using open-source generative AI models lawfully by having Michalsons draft the associated licenses.
  • Determine how AI impacts your organisation by asking us for an AI risk assessment.
  • Stay updated with the latest AI law news by subscribing to our newsletter and reading our insights.