Navigating the Legal Challenges of Generative AI in Game Development

The advent of generative artificial intelligence (GenAI) has opened up numerous opportunities for the gaming industry. Recent developer events, such as GDC, have highlighted the potential of GenAI in creating maps, improving development workflows, performing QA tasks, and responding to in-game actions. However, the integration of GenAI also poses significant legal risks that publishers must address. These risks span various areas of law, including intellectual property law, privacy law, and tort law. The use of GenAI in game development (DevAI) and during gameplay (LiveAI) raises important questions about IP infringement, copyright protection, and the potential for AI-generated content to infringe on existing IP rights. For instance, if a GenAI model is trained on copyrighted content, does its use constitute copyright infringement? What if the model outputs protected content? Can IP protection be obtained for AI-generated content? The recent lawsuit between The New York Times and Microsoft over the use of copyrighted articles to train ChatGPT's language models highlights the need for clarity on these issues. Furthermore, the output of GenAI models can also raise IP concerns, such as trademark infringement if a generated character bears a resemblance to a protected trademark. To mitigate these risks, game developers can take steps such as human review of AI-generated content and avoiding the use of GenAI models trained on copyrighted content. Additionally, developers must consider the implications of privacy laws, such as the California Consumer Privacy Act, when collecting and using personal data to train GenAI models. The right of publicity, which protects an individual's identity and likeness, is another area of concern, particularly if GenAI models inadvertently or intentionally produce a person's image or likeness. Game developers must take precautions, such as including disclaimers in terms of service, to respect players' rights of publicity. The use of GenAI also raises concerns for voice actors and motion capture actors, as seen in the recent SAG-AFTRA strikes. To navigate these complex legal issues, game developers must implement AI use policies and ensure sufficient internal policing to avoid potential liability. By taking a proactive approach, developers can harness the potential of GenAI while minimizing the risks and ensuring a successful outcome.