Navigating the Legal Pitfalls of Generative AI in Game Development

The integration of generative artificial intelligence (GenAI) in game development presents a multitude of opportunities, but also poses significant legal risks. As the gaming industry increasingly adopts GenAI for tasks such as map creation, workflow improvement, QA, and in-game action responses, it is crucial for publishers to address these challenges before fully embracing the technology. The legal implications of GenAI span various areas, including intellectual property law, privacy law, and tort law, affecting both the development phase (DevAI) and the gameplay phase (LiveAI). One of the most pressing concerns is how GenAI intersects with intellectual property law, raising questions about potential infringement when models are trained on protected content or produce protected outputs. The use of GenAI models trained on copyrighted materials may constitute copyright infringement, a issue currently being debated in federal courts, such as in the lawsuit between The New York Times and Microsoft over the use of copyrighted articles to train ChatGPT's large language models. Furthermore, if a GenAI model outputs content that is itself protected by copyright, trademark, or patent, such as a character resembling Mario, the developer could face infringement claims. Mitigating these risks is possible through human review of GenAI outputs or using models trained on non-copyrighted data, but these methods are not foolproof. Obtaining intellectual property protection for GenAI outputs is also challenging, as current laws do not permit AI to be listed as an inventor on patent applications or to receive copyright protection for works produced without human creative input. However, by demonstrating significant human contribution to the development or training of GenAI models, developers may be able to secure patent or copyright protection. Beyond intellectual property, the use of GenAI also raises privacy concerns, particularly when personal data is collected and used to train or interact with GenAI models, potentially implicating consumer protection and privacy laws. The right of publicity, which protects individuals' control over the commercial use of their identity, is another area of concern, as GenAI may inadvertently or intentionally produce outputs that violate this right, such as using a player's image or likeness without consent. To navigate these legal complexities, game developers must implement policies to ensure responsible GenAI use, including obtaining necessary permissions, being transparent about data use, and respecting individuals' rights of publicity. By taking proactive steps to address these challenges, developers can harness the potential of GenAI while minimizing legal risks.