Artificial Intelligence and Copyright: Implications and Risks for Game Developers

The legal challenges and opportunities arising from the use of AI in game development.

In today’s digital world, where Artificial Intelligence (AI) is becoming increasingly important, I find myself asking new and complex questions about copyright. One such issue concerns the possibility of an AI generating an image that happens to resemble an existing copyrighted work. Could this be considered copyright infringement? And who would be the creator of the generated work in such a case – the AI, the user, or the provider of the AI?

These issues are not just theoretical, but have practical implications for a variety of industries, especially game development. With the increasing use of AI to generate game content, from character designs to level layouts, there is a growing likelihood that AI-generated works could resemble existing copyrighted works.

In this blog post, I will highlight these issues from my legal perspective and discuss the potential implications for game developers. I will address the current legal framework and the challenges it poses, examine the role of the terms and conditions (T&Cs) of AI providers, and provide practical advice for game developers on how to overcome these challenges.

My goal is to create a better understanding of the legal aspects of AI use in game development and to identify ways in which game developers can take advantage of AI while minimizing legal risks.

Basic legal issues

Copyrights arise in Germany when a work is created that exhibits a certain originality and creativity and is considered a personal intellectual creation. This can include a variety of work types, including literary works, musical compositions, works of art, architecture, and even computer programs.

With respect to AI that generates an image that resembles a copyrighted work, the question is raised whether that generated image can be considered a separate copyrighted work. The answer to this question is complex and depends on several factors, including the specific characteristics of the generated image and how the AI was programmed.

It is also important to note that subsequent editing or reworking of content originally generated with AI may play a role. For example, if a user modifies an AI-generated image in a way that constitutes personal intellectual creation, this could result in the edited image being considered a copyrighted work.

Another problem concerns the general terms and conditions (GTC) of many AI providers. In many cases, these T&Cs specify that the user does not obtain copyright to the content generated by the AI. This could mean that even if an image generated by an AI is considered a copyrighted work, the user does not necessarily own the rights to that work.

In addition, it should be noted that many AI providers are based abroad and therefore international law could be relevant. This can further complicate the legal situation, as different countries have different approaches to copyright and AI.

With regard to the types of works, it is important to note that German courts apply very strict standards to certain types of works, such as music, when assessing copyright infringement. This means that even minor similarities between an AI-generated work and an existing copyrighted work could lead to copyright infringement.

Recommendations, conclusions and final thoughts

In the ever-evolving landscape of artificial intelligence (AI) and copyright law, it is critical that game developers take proactive steps to minimize legal risks. This requires careful planning and consultation to reap the benefits of AI while minimizing legal risks.

To minimize these risks, I strongly recommend establishing clear regulations for the use of AI in the company. The use of AI should be documented and assigned to individual assets. Not only does this help keep track of AI usage, but it can also help avoid potential copyright infringement.

In addition, publishing and freelance contracts should be adapted to clearly define the rights and obligations of all parties involved with regard to the use of AI and the resulting content. However, it is also important to closely examine contracts that seek to prohibit the use of AI. AI is now present in many more places than just image generators, for example in Photoshop or other tools. A general ban on AI use could therefore be impractical or even counterproductive.

It is also important to be aware that the legal landscape regarding AI and copyright is constantly evolving. Therefore, it is advisable to consult an experienced attorney to ensure that you are up to date with current legislation and case law.

The use of AI in game development is an exciting and rapidly evolving field that presents both great opportunities and significant legal challenges. I recently had the opportunity to attend the GermanDevDays and talk to many game developers about these challenges. These conversations reinforced my belief that it is important to be aware of these challenges and take proactive steps to minimize legal risks.

It is clear that the discussion about AI and copyright in game development is far from over. I look forward to continuing this discussion in the future and sharing my experiences and insights.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.