Artificial intelligence and the exploitation of visuals in films and games

Introduction

With the advent and rapid development of Artificial Intelligence (AI), we are witnessing a revolution in the film and gaming industry. This technology, once considered science fiction, is now a reality and is increasingly being used to create and enhance content. However, this raises a number of new challenges and questions in the area of personal rights and copyright.

The use of images and videos of actors and other people in movies and games is not new, but the way these materials can be manipulated and reproduced by AI is a relatively new phenomenon. This raises a number of legal issues, which are discussed in this blog post.

It’s not just Hollywood that is grappling with the increasing use of AI. Indeed, there is a growing debate in the film industry about the ethical and legal implications of using AI to create content. Some in the industry have expressed concerns that using AI to create realistic images and videos of actors could infringe on their rights.

But it’s not just filmmakers who are grappling with these questions. Computer game developers are also eager to jump on the AI bandwagon. They see AI as a way to improve the quality of their games by creating more realistic render sequences and other content. But again, there are concerns about the legal and ethical aspects of using AI, especially when it comes to using footage of real people.

In this rapidly evolving field, it is critical that the legal framework keeps pace and protects the rights of both creators and the people they depict. This blog post will discuss some of these issues and identify possible ways to address these challenges.

Laws and legal issues

The use of visuals in movies and games is a complex field governed by a variety of laws and regulations. These include the Copyright Act, which regulates the protection of creative works and their use, the right to one’s own image (Art. 22 KunstUrhG), which prohibits the use of images of a person without that person’s consent, and the general right of personality (Art. 2 (1) in conjunction with Art. 1 (1) GG), which protects the dignity and freedom of the individual.

The use of image material without the consent of the person depicted may constitute a violation of personal rights. This can have both civil and criminal consequences, including claims for damages and possibly even criminal penalties.

However, the introduction of AI into this space raises additional legal issues. One is who holds the copyrights to the images created or modified by AI. Since AI systems are not recognized as legal entities, they cannot own copyrights. This raises the question of whether the copyrights remain with the original person who provided the imagery, or whether they rest with the developers of the AI software that modified the imagery.

In addition, the use of AI to create or modify imagery may also raise questions regarding the consent of the person depicted. If a person agrees to use their image in one context, does that also mean they agree to an AI’s use of their image in a potentially very different context? This is an area that needs further legal clarification.

Overall, it appears that the use of AI in the film and games industry presents a number of legal challenges that need to be carefully considered and addressed.

Problem areas

Consent to the use of image material is a central problem area that is often regulated by contracts or general terms and conditions (GTC). However, these documents can often be complex and difficult for laypeople to understand, which can lead to misunderstandings and legal disputes. In addition, consent to use imagery in certain contexts, such as using AI to create deepfakes, may raise ethical and legal concerns.

In the games industry, publishing agreements are often used to govern the rights and obligations of developers and publishers. These contracts may contain provisions that allow or prohibit the use of AI. It is important that these contracts are clear and unambiguous and protect the rights of all parties.

Contracts with actors or performers, as well as motion capture agreements, are another important element in this context. These contracts should clearly regulate how and when imagery may be used, including use by AI. They should also include provisions that protect performers’ rights, including their right to privacy and their right to their own image.

Another problem area is the issue of copyrights on images created or modified by AI. It is unclear who holds the copyrights to such images. This can lead to legal disputes, especially if the original image material was used without the consent of the person depicted.

Finally, there is the question of the conditions under which completely new content can be created, but which only accesses old content for which license agreements already exist. In principle, it has probably been clarified that, for example, a face of an actor whose recording has been used once may not simply be completely re-rendered and inserted into new scenes by AI without the consent of the person concerned.

However, the exact details and scope of these regulations are still subject to debate and will likely need to be clarified by courts in future decisions. It is therefore critical that all stakeholders-from AI developers and game makers to actors and others depicted-understand and respect their rights and obligations regarding AI’s use of visuals.

Conclusion

The use of AI in the film and gaming industry is an exciting and innovative field, but one that presents a number of legal issues and challenges. These range from copyright and privacy issues to complex contractual matters and ethical concerns.

It is critical that both industry and the legal community respond proactively to these challenges. This means they must work together to develop clear and actionable policies and best practices. These should consider not only the legal aspects of using AI and imagery, but also the ethical and social implications of these technologies.

In addition, it is important that these policies and best practices are communicated and implemented in a way that is understandable and accessible to all stakeholders. This includes providing training and resources to those in the industry who work with AI and imagery, as well as educating the public about their rights and responsibilities regarding these technologies.

Finally, we should remember that technology is evolving and regulatory frameworks must keep pace. This will require an ongoing effort to ensure that the rights of all stakeholders are protected and that the incredible opportunities AI offers are used in a way that is both legally and ethically responsible.

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.